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THE  CONSTITUTIONAL  LAW 


^,11/"* 


OF  THB 


UNITED  STATES  OF  AMERICA. 

7cU^     ^.J-^-^^L.    2^ 


BY 

De.  H.  von  HOLST, 


AUTHORIZED  EDITION. 


TRANSLATED  BT 

ALFRED  BISHOP  MASONS. 


CHICAGO,  ILL, : 

CALLAGHAN  &  COMPANY. 

1887. 


^  1^  3  1 


Entered  according  to  Act  of  Congress  in  the  year  eighteen  hundred  and  eighty -seven 

By  CALLAGHAN  &  COMPANY, 

in  the  ofiQce  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


DAVID  ATVrOOD,  PRINTER  AND   8TERE0TYPER,  MADISON,  WIS. 


PKEFAOE. 


This  treatise  on  the  constitution  of  the  United  States  is 
but  a  sketch.  I,  this  time,  could  not  attempt  to  write  a 
more  pretentious  work,  for  it  was  to  form  part  of  Mar- 
quardsen's  "Handbuch  des  Oeffentlichen  Rechts."  Ed- 
itor and  publisher  had  to  insist  upon  it  that  I,  like  all 
the  other  contributors,  consented  to  being  bound  by  con- 
tract not  to  exceed  a  certain  number  of  pages.  Though 
they  afterwards  kindly  allowed  me  nearly  double  the 
space  originally  agreed  upon,  yet  no  sooner  had  I  dipped 
my  pen  into  the  inkstand  than  it  became  evident  that 
even  the  most  essential  questions  had  to  be  treated  with 
a  brevity  which  more  than  once  sorely  tried  my  temper. 
Questions  of  less  importance,  though,  too,  of  considerable 
interest,  had  to  be  compressed  into  a  still  smaller  com- 
pass, and  many  a  point  which  bad  found  a  place  in  my 
preparatory  notes  had  to  be  thrown  out  entirely. 

The  difficulty  in  deciding  what  to  retain  and  what 
to  let  go  by  the  board,  how  much  space  to  allow  to 
each  question  and  —  last,  not  least  —  how  to  treat  them, 
was  greatly  increased  by  the  consideration  that  I  was 
to  write  for  European  readers.  Even  the  foremost 
American  authors  could  serve  me  but  to  a  very  limited 
extent  as  models,  because  they  have  all  written  for  Amer- 
icans, while  my  task  was  not  to  be  the  instructor  of  those 
who  are  to  the  manor  born,  but  the  cicerone  of  strangers. 
These  having  but  little  time  to  spare,  and  their  interest  in 
the  subject  being  but  limited  and  quite  unconnected  with 


IV  PREFACE. 

any  practical  purposes,  they  expect  to  be  shown  what 
from  their  standpoint  merits  the  most  attention.  Be- 
sides, everything  has  to  be  presented  in  such  a  manner 
that  they  can  really  understand  what  they  see  —  in  this 
case  by  no  means  an  easy  task,  for  even  educated  Euro- 
peans frequently  show  an  astonishing  talent  for  misunder- 
standing the  most  lucid  expositions  of  American  institu- 
tions and  their  working. 

It  is  not  necessary  further  to  enlarge  upon  these  points^ 
for  what  I  have  said  is  sutRcient  to  show  why  the  first 
inquiries  with  regard  to  a  translation  of  the  treatise  were 
not  received  by  me  with  a  feeling  of  unmixed  satisfac- 
tion. I  not  only  could  have  dived  deeper,  and  would 
have  done  so,  if  I  had  intended  to  write  for  Americans, 
but  even  if  I  had  confined  myself  to  a  mere  sketch,  the 
perspective  would  have  been  somewhat  different.  Be- 
sides, the  treatise  had  to  be  wnntten  at  a  time  when  I 
could  not  go  either  to  England  or  the  United  States. 
My  only  literary  resources  were  my  private  library  and 
the  notes  previously  taken  in  the  British  Museum  and 
American  libraries. 

These  statements  I  have  had  to  make  in  justice  to  my- 
self as  a  scholar  and  an  author.  To  clear  the  way  for  a 
new  book  by  explanations  which  have  a  rather  strong 
flavor  of  excuses  will,  however,  never  be  exactly  to  the 
liking  of  an  author  who  thinks  that  he  has  any  reputa- 
tion to  lose.  Nevertheless  I  have  concluded,  upon  more 
mature  reflection,  to  give  my  formal  assent  to  having  the 
treatise  translated,  trusting  that  the  American  public 
will  deal  with  it  not  only  fairly  but  with  the  same  kind- 
ness with  which  they  have  received  my  other  and  more 
pretentious  writings.  I,  of  course,  do  not  expect  to  see 
it  in  the  hands  of  lawyers  arguing  constitutional  ques- 
tions before  court,  or  of  statesmen  busying  themselves 


FSEFAOE.  V 

in  congress  to  manufacture  new  constitutional  nuts  for 
judges,  counselors  and  publicists  to  crack.  But  the  jun- 
iors and  seniors  of  the  colleges,  and  perhaps  even  the 
students  of  the  law  schools,  may  find  it  quite  a  handy 
guide  in  the  pursuit  of  their  studies  on  the  public  law  of 
their  country.  Xay,  I  am  bold  enough  to  hope  that,  as 
a  convenient  book  of  reference,  if  as  nothing  else,  it  will 
render  some  good  services  in  the  hands  of  men  who  have 
in  no  professional  way  anything  to  do  with  constitutional 
law,  but  are  fully  conscious  how  important  it  is  that  the 
citizen  of  a  democratic  republic  stands  on  his  own  legs 
with  regard  to  the  public  law  of  his  country,  instead  of 
having  implicitly  to  rely  upon  the  wisdom  of  his  daily 
paper  and  any  stump  speaker  whom  he  may  chance  to 
hear. 

H.    VON    HOLST. 

Fketbitrg,  i.  B.,  June  4,  1886. 

[The  translator  has  been  aided  in  his  work  by  Mr. 
C.  J.  Heyne.} 


CONTENTS. 


Page. 

Part     I.    Genesis  op  the  Constitution 1 

Part    II.    The  Federal  Constitution 36 

Part  HI.    Constitutional   and  General  Law  of  tfie  Sep- 
arate States 263 

Appendix  :  The  Constitution,  avith  Notes 337 

Index 361 


THE  CONSTITUTIONAL  LAW 


OF 


THE  UNITED  STATES  OF  AMERICA. 


PART  FIRST. 

GENESIS  OF  THE  FEDERAL  CONSTITUTIOK 

Authorities.  Peter  Force:  American  Archives,  9  vols.,  Wash., 
1833-37.  The  Journals  of  Congress  from  177 Ji.  to  1788,  13  vols., 
Phila.,  1777-88  (4  vols..  Wash.,  1833).  Secret  Journals  of  the  Acts 
and  Proceedings  of  Congress  from  the  First  Meeting  thereof  to  the 
Dissolution  of  the  Confederation  by  the  Adoption  of  the  Constitu- 
tion of  the  United  States,  4  vols.,  Boston,  1821.  J.  Elliot:  The  De- 
hates  in  the  several  State  Conventions  on  the  Adoption  of  the  Federal 
Constitution  as  Recommended  by  the  General  Convention  at  Phila- 
delphia in  1787,  together  tcith  the  Journal  of  the  Federal  Convention, 
Luther  Martin's  Letter,  Oate^s  Minutes,  Congressional  Opinions, 
Virginia  and  Kentucky  Resolutions  of  '98  and  '99,  and  other  Illustra- 
tions, 5  vols.,  Phila.,  1861.  Journals,  Acts  and  Proceedings  of  the 
Convention  assembled  at  Philadelphia  which  framed  the  Constitution 
of  tJie  United  States,  Boston,  1819.  The  Federalist  (H.  B.  Dawson's 
edition,  2  vols.,  Morrisania,  1864). 

TTie  Works  of  Benjamin  Franklin,  10  vols.,  Phila.,  1840.  T^ 
Works  of  John  Adams,  10  vols.,  Boston,  1856.  The  Writings  of 
George  Washington,  12  vols..  New  York,  1852.  The.  Writings  of 
Thomas  Jefferson,  9  vols.,  Wash.,  1853.  Letters  and  other  Writings 
of  James  Madison,  4  vols.,  Phila.,  1865.  The  Works  of  Alexander 
Hamilton,  7  vols..  New  York,  1851.  The  Works  of  Fisher  Ames,  2 
vols.,  New  York,  1869. 

Sherman:  The  Governmental  History  of  the  United  States  of 
America  from  the  Earliest  Settlement  to  the  Adoption  of  the  Consti- 
1 


2  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

ttttioti,  Pliila..  1860.  R.  Frothingham:  The  Eiae  of  the  Rcinthlic  of 
the  United  States,  Boston,  1872.  G.  Bancroft:  History  of  the  United 
States,  from  the  Discovery  of  the  American  Continent  to  the  Close  of 
the  Revolutionary  War,  10  vols.,  Boston,  183J;-74.  G.  Bancroft: 
History  of  the  Formation  of  the  Constitution  of  the  United  States 
of  America,  2  vols.,  New  York,  1882.  R.  Hildreth:  History  of  the 
United  States  from  the  Discovery  of  America  to  the  End  of  the  Six- 
teenth Congress,  6  vols.,  New  York,  1879  (new  edition).  G.  Tucker: 
The  History  of  the  United  States  from  their  Colonization  to  the  End 
of  the  Twenty-Sixth  Congress  in  IS41.  J.  Grahame:  The  History  of 
the  Rise,  and  Progress  of  the  United  States  of  North  America  from 
their  Colonization  till  the  Declaration  of  Independence,  4  vols., 
Pliila.,  1845.  T.  Pitkin:  A  Political  and  Civil  History  of  the  United 
States  of  America  from  their  Commencement  to  the  Close  of  the  Ad- 
ministration of  Washington,  including  a  Summary  of  the  Political 
and  Civil  State  of  the  New  England  Colonies  Prior  to  that  Period,  2 
vols.,  New  Haven,  1828.  H.  Von  Hoist:  Verfassnng  nnd  Demokratie 
der  Vereinigten  Staaten  von  America,  I.  Theil,  Dusseldorf.  187-> 
{Von  HolsVs  Constitutional  History  of  the  United  States  of  America. 
Vol.  I.,  translated  by  John  J.  Lalor  and  Alfred  Bishop  Mason,  Calla- 
ghan  &  Co.,  Chicago,  1877).  G.  T.  Curtis :  History  of  the  Constitution, 
2  vols.,  New  York,  1863.1 

§  1.  In  G.ENERAL.  Like  every  constitution  "which  has 
or  can  have  a  real  hfe,  that  of  the  United  States  of  Amer- 
ica is  a  result  of  actual  circumstances  of  the  past  and  the 
present,  and  not  a  product  of  abstract  political  theorizing. 
It  can  therefore  be  understood  and  rightly  judged  only 
from  the  standpoint  of  the  history  of  the  development  of 
the  countrv.  A  knowledge  of  the  facts  of  its  orio;in  is 
not.  however,  sufficient  to  understand  and  to  judge  it. 

•  For  lack  of  space,  I  cannot  enumerate  many  important  biogra- 
phies. Unfortunatel\%  I  must  abandon  the  idea  of  specifying  the 
books  (their  number  is  by  no  means  small)  which  lay  claim  to 
sc-ientific  treatment  of  their  subjects,  which,  while  of  service  on  this 
f)r  that  ])oint.  are  in  general  either  worthless  or  are  crammed  full  of 
stupid  blunders.  Books  once  named  are  not  repeated  in  subsequent 
lists  of  authorities.  In  the  case  of  current  official  publications  (laws, 
f-tenographic  reports  of  the  debates  of  congress,  etc.)  I  do  not  give 
the  number  of  volumes. 


GENESIS   OF   THE    FEDERAL   CONSTITUTION.  d 

For,  since  the  life  of  the  people  is  the  basis  of  the  consti- 
tution, and  undergoes  a  steady  development,  the  constitu- 
tion itself,  quite  apart  from  any  formal  alterations,  must 
have  a  certain  capacity  for  change,  and  this  not  the  less 
real  because  there  is  no  formal  statement  of  it  in  the 
instrument  itself.  A  constitution  wliich  resembles  a 
Chinese  shoe  can  suit  only  a  nation  that  has  sunk  into 
Chinese  inertia.  The  fundamental  law  of  a  state  must 
have,  without  hurt  to  its  firmness,  enough  elasticity  to 
be  able  to  meet  fully  every  new  development  of  national 
needs,  without,  however,  either  breaking  loose  from  its 
general  framework,  or  subjecting  this  to  sudden  change. 
The  real  essence  of  the  constitution,  as  it  takes  concrete 
shape  in  legislation,  must  grow  and  change  with  the 
advancing  public  and  private  life  of  the  people.  Thus  it 
is  always  in  a  steady  process  of  development.  This  is  an 
absolutely  essential  element  in  forming  a  judgment  upon 
it,  but  is  wholly  ignored  when  it  is  interpreted  simply  by 
the  rules  which  are  binding  upon  judges  in  the  applica- 
tion of  ordinary  statutory  law  to  cases  before  them. 
These  rules,  indeed,  are  of  full  force  in  regard  to  the 
fundamental  law,  but  the  latter  must  nevertheless  always 
be  read,  considered  and  criticised  by  the  light  of  history.' 
If  the  statesman  is  bound  to  be,  in  the  practical  dis- 
charge of  his  duties,  a  conscientious  jurist,  the  jurist 
must,  in  his  work  of  examination  and  testing,  always 
keep  in  mind  the  point  of  view  of  the  statesman. 

§  2.  History  of  the  Origin  of  the  Union. —  The 
Articles  of  Confederation.  The  English  colonies  which 
changed  themselves,  July  4,  1T76,  into  the  United  States 
of  America  had  always  —  with  the  exception  of  the  Dutch 
period  of  New  Amsterdam  (New  York)  —  had  an  indi- 

iPomeroy:  An  Introduction  to  the  ConstitutioncU  Law  of  the 
United  States,  §§  18-21. 


4  COXSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

rect  leijal  relation  to  each  other,  because  thev  were  all 
subject  to  the  political  control  of  the  same  mother- 
country.  But  quite  apart  from  this,  some  among  them 
very  early  established  closer  ties  Avith  one  another.  The 
contiguous  territory  of  the  colonies  and  the  equality  in 
outward  conditions  of  life  among  the  colonists  developed 
a  community  of  interests  which  grew  steadily  both  broad 
and  deep,  and  at  last  necessarily  became  stronger  than 
the  bonds  of  law  which  knit  the  separate  colonies  to  the 
mother-land.  On  the  other  hand,  the  political  and  social 
organization  of  the  di^erent  colonies  took  such  different 
shapes,  and  the  sparseness  of  the  population  and  insufficient 
means  of  communication  did  so  much  to  promote  sepa- 
rate development,  that  from  the  very  beginning  of  these 
gropings  after  union  a  tendency  to  limit  the  union  at 
any  rate  to  what  was  absolutely  necessary  showed  itself 
clearly.  The  wishes  and  struggles  of  the  people  for 
political  union  did  not  hurry  ahead  of  the  development 
of  actual  circumstances.  At  the  most  they  kept  step 
with  this  development.  Often  they  hobbled  behind  it 
slowly  and  unwillingh^  The  league  of  the  united 
colonies  of  Xew  England, —  Massachusetts,  Plymouth, 
Connecticut  and  New  Haven, —  in  1643  against  the  In- 
dians and  the  Dutch,  lost  all  significance  with  the  occasion 
which  had  called  it  into  life.  After  its  unwept  death 
decades  passed  by  before  there  were  any  noteworthy  signs 
of  the  existence  of  a  wish  to  frame  a  new,  broader  and 
closer  alliance.  Outside  enemies  again  gave  the  impulse, 
and  the  mother-country  took  the  initiative.  On  account 
of  the  threatened  war  with  France  a  congress  was  called 
at  Albany  in  1754,  at  which  New  Hampshire,  Massachu- 
setts, Rhode  Island,  Connecticut,  New  York,  Pennsyl- 
vania and  Maryland  were  represented.  But  while 
England  expected  to  gain  by  this  only  more  assurance  of 


GENESIS    OF   THE    FEDERAL   CONSTITUTION.  O 

the  safety  of  the  colonies,  and  desired  especially  the 
establishment  of  a  good  understanding  with  the  Indians, 
the  representatives  of  the  colonies  were  excited  by 
thoughts  of  a  permanent  league  with  correspondingly 
wide  aims.^  Their  suggestions,  however,  not  only  were 
received  with  no  favor  by  the  English  government, 
but  were  rejected  by  all  the  colonial  legislatures,  with- 
out exception.  The  strife  with  the  mother-country 
over  the  right  of  parliament  to  lay  taxes  on  the  colonies 
first  made  the  latter  see  that  their  deepest  interests  made 
their  firm  alliance  an  imperative  necessity.  Nine  colo- 
nies were  represented  at  the  congress  at  New  York  in 
October,  1765,  which  was  answered  by  the  repeal  of  the 
Stamp-act.  The  more  the  conflict  took  the  shape  of  a 
revolution,  the  more  overwhelming  became  the  conv^iction 
that  there  was  no  longer  a  struggle  between  a  number  of 
like-minded  colonists  and  the  mother-country  over  a 
greater  or  less  share  of  political  rights,  but  that  in  fact 
against  European  England  an  America  was  arrayed.  The 
more  the  colonies  adapted  their  acts  to  this  fact,  the 
more  they  were  impressed  with  the  other  fact,  that  just 
so  far  as  they  were  conscious  of  belonging  to  each  other, 
they  were  forced  into  a  position  apart  from  the  rest  of 
the  world.  They  could  not  make  simply  ad  hoc  an  offen- 
sive and  defensive  alliance,  if  the  common  weal  was  to  be 
victoriously  won,  but  at  this  time,  long  before  the  swing 
of  mind  and  spirit  had  reached  its  highest  point,  every 
suggestion  of  a  complete  fusion  was  rejected  decisively 
and  with  increasing  emphasis.  The  congress  which  met 
at  Philadelphia  early  in  September,  1774,  was  attended 
by  delegates  from  all  the  colonies  except  Georgia,  was 
called  a  "  continental  congress,"  and  spoke  in  the  name 

^See  Kent:  Commentaries  on  American  Law,  I.,  pp.  204-5. 


G  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

of  '•  the  good  people  of  these  colonies,"  but  it  immedi- 
ately voted  that  each  colony  should  have  an  equal  voice. 
This  remained  the  rule  in  the  second  continental  con- 
gress, whicli  began  its  session  May  10,  1775,  at  Philadel- 
phia. In  this,  CJeorgia  also  was  hnally  represented.  The 
strife  was  now  transferred  from  the  fo)'am  to  the  tented 
held.  Congress  did  not  limit  itself  to  trying  to  do  what 
a  general  war  demanded,  such  as  the  equipment  of  a  con- 
tinental army,  the  creation  of  a  common  treasury,  etc., 
but  it  set  itself  up  —  witliout  being  regarded  on  this  ac- 
count as  stepjjing  beyond  its  i)owers  —  as  an  authorized 
leader  of  the  colonies  in  their  separate  affairs,  since  it 
exhorted  tliem  to  give  themselves  governments  such  as 
their  needs  and  the  common  welfare  demanded,  and  ex- 
pressed the  belief  '"  that  the  exercise  of  every  kind  of 
authority  under  the  crown  of  Great  Britain  should  be 
totally  suppressed."  Xot  in  pursuance  of  resolutions  of 
the  legislatures  or  of  any  extraordinary  representative 
assemblies  of  the  people  of  the  different  colonies,  which 
miglit  have  given  instructions  binding  upon  the  respective 
delegates,  but  by  virtue  of  its  own  revolutionary  author- 
ity, which,  because  it  was  revolutionary,  had,  and  could 
have,  no  legal  limits,  congress  stepped  foi'th  as  the  sole 
representative  of  the  commonwealth  to  act  for  the  com- 
mon weal  in  accordance  with  this  conviction.  June  10, 
1770,  it  voted  to  appoint  a  committee  to  draw  a  dec- 
laration ''that  these  united  colonies  are,  and  of  right 
ought  to  be,  free  and  independent  states." 

As  congress  acted  as  a  revolutionary  representative  of 
the  entire  commonwealth,  so  from  the  beginning  it 
claimed  full  political  independence  and  sovereignty  only 
for  the  colonies  as  a  united  whole.  The  resolution  passed 
on  the  following  day  to  appoint  a  committee  to  draft  a 
plan  of  confederation  was,  therefore,  not  only  a  direct 


GENESIS    OF   THE    FEDEltAL   CONSTITUTION.  i 

result  of,  but  was  already  contained  in,  the  resolution  of 
the  10th.  Since  tiie  decisioi;i  of  congress  was  ratified  by 
the  acts  of  the  colonies,  its  formal  ratification  by  the  gov- 
ernments or  people  of  the  different  colonies  was  thought 
unnecessary  and  did  not  take  place.^  The  declara- 
tion of  independence,  a  formulization  on  the  4th  of 
July  of  the  resolution  of  the  10th  of  June,  did  not 
concern  itself  as  to  whether  the  colonies  as  states 
should  enter  into  a  political  league  of  some  kind  or  other, 
but  simply  as  to  how  the  Union,  made  as  a  matter  of  fact 
long  before  and  now  declared  to  exist  as  matter  of  law, 
should  be  shaped  in  detail.  The  constituent  members  of 
the  Union  have  never  legally  or  actually  been  "  free  and  in- 
dependent states  "  in  the  full  and  proper  sense  of  the  term.^ 
As  Lincoln  said,  the  Union  is  older  than  the  states,  and 
the  states  became  "  states  "  only  as  constituent  members 
of  the  Union ;  and  the  word  "  state  "  has,  therefore,  al- 
ways had  in  America,  legally  and  actually,  only  a  limited, 
meaning,  which  excludes  the  idea  of  "  sovereignty  "  in 
the  full  and  proper  sense  of  the  word. 

It  was  more  than  a  year  (November  15,  1777)  before 
congress  finally  decided,  how  its  own  revolutionary  au- 
thority, which  so  far  had  been  limited  only  by  its  own 

1  The  next  resolution,  which  has  been  much  too  little  considered  in 
the  conflict  over  questions  of  constitutional  law,  as  to  the  poUtical 
nature  of  the  Union,  cannot  be  harmonized  witli  any  other  view  than 
that  here  expressed.  It  reads:  "  Resolved,  that  copies  of  the  decla- 
ration be  sent  to  the  several  assemblies,  conventions  and  committees, 
our  councils  of  safety,  and  to  the  several  commanding  officers  of  the 
continental  ti-oops;  that  it  be  proclaimed  in  each  of  the  United 
States  and  at  the  head  of  the  army." 

2Ruttimann,  in  his  Das  Nordamerikanische  Biindesstaatsrecht  (I., 
23),  affirms  the  contrary,  but  bases  his  opinion  too  closely  upon  the 
assumption  that  each  colony  had  "  its  own  constitution  and  a  full 
political  organization  complete  for  all  public  purposes."  Moreover, 
there  are  weighty  arguments  easy  to  cite  against  this  latter  assertion. 


b  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

ideas  and  by  public  opinion,  should  bo  brought  under 
and  within  fixed  legal  forms.  The  conclusions  reached 
placed  tlie  Union  upon  a  wholly  new  basis.  The  very 
title  of  the  proposed  paper  showed  this  clearly.  It  was 
not  a  constitution,  but  "articles  of  confederation."  The 
change  was  even  more  apparent  in  the  opening  sentence. 
In  the  declaration  of  independence  the  separate  colonies 
are  not  once  named.  At  the  end,  it  says :  "  The  forego- 
ing declaration  was,  by  order  of  congress,  engrossed  and 
signed  by  the  following  members."  Under  the  signature 
of  the  presiding  officer  followed  thoso  of  his  colleagues 
in  the  order  of  their  states.  The  name  of  the  state  was 
prefixed  to  tlie  names  of  its  representatives,  without  the 
addition  of  a  single  word.  Now,  on  the  contrary,  there 
was  an  enumeration  of  the  separate  states  whose  "  dele- 
gates" had,  according  to  the  next  article,  agreed  upon  a 
"  confederation  and  perpetual  union,"  but  nothing  more 
was  said  of  the  "  people,"  of  w^hom  the  first  sentence  of 
the  declaration  of  independence  had  spoken.  So,  too, 
the  articles  of  confederation  did  not  begin  with  a  recital 
of  the  rights  and  powers  of  the  Union. 

The  second  article  —  the  first  relates  only  to  the  name  — 
declares  that  "each  state  retalms  its  sovereignty,  freedom 
and  independence,"  as  well  as  every  power  and  every 
right  not  "  expressly  "  delegated  to  congress.  The  third 
article  takes  a  still  more  significant  step  forward,  for  it 
declares  thac  "  the  said  states  hereby  severally  enter  into 
a  firm  league  of  friendship  with  each  other"  for  the  pur- 
j)Oses  enumerated.  Thus,  in  boldest  opposition  to  facts, 
the  Union  appears,  in  the  articles  of  confederation,  as 
being  liist  called  into  life  by  them,  and  the  character  of 
a  simjjle  league  of  states,  now  really  given  it  for  the  first 
time,  is  put  forward  as  one  in  full  conformity  with  the 
actual  and  legal  facts  of  the  past.     Congress  transformed 


GENESIS   OF   THE    FEDERAL   CONSTITUTION.  9 

itself,  SO  far  as  the  nature  of  the  mandates  of  its  members 
was  concerned,  from  a  (revolutionary)  government  into  a 
congress  of  delegates,  for  the  right  of  recalling  the  mem- 
bers was  reserved  to  the  states.  It  is  not  expressly  de- 
clared that  this  right  belongs  to  the  legislature,  but  the 
method  of  electing  their  delegates  is  wholly  remitted  to 
them.  The  people  are  mentioned  only  here  and  there  as 
an  object  of  the  Union.  As  the  source  of  power  and  as 
self-governing  they  never  appear.  So  far  as  the  Union  is 
concerned,  the  legislatures  are  treated  as  the  sole  and  un- 
limited bearers  of  sovereignty.  They  were  to  ratify  the 
articles  of  confederation,  and  give  them,  by  this  ratifica- 
tion, the  force  of  law,  although  they  had  been  authorized 
to  form  a  constitution  for  the  Union,  neither  by  the  con- 
stitutions of  their  respective  states,  nor  in  any  v/ay  what- 
ever. Moreover,  changes  in  the  articles  were  made 
dependent  upon  their  approval,  and  the  consent  of  all  the 
legislatures  was  required  for  the  slightest  change.  Con- 
gress exhorted  the  legislatures,  by  an  act  of  public  usur- 
pation against  the  legal  consequences  of  historical  facts, 
to  transform  the  Union  into  a  league  of  states,  and  the 
legislatures  recklessly  responded  to  this  demand.  The 
circumstance  that  some  of  them  delayed,  and  for  so  long 
a  time  refused,  their  ratification  was  in  no  way  connected 
with  their  legal  incompetence,  and  did  not  result  from 
any  wish  to  keep  for  the  Union  the  political  nature  given 
it  by  the  course  of  the  Kevolution.  They  considered  it 
as  self-evident  that  congress,  during  this  whole  time,  re- 
garded the  articles  of  confederation  as  having  the  force 
of  law,  and  they  would  have  offered  the  most  stubborn 
opposition  if  it  had  sought  once  more,  as  in  the  beginning 
of  the  Revolution,  to  fix  the  boundaries  of  its  own  power. 
While  it  was  recognized  that  the  decisive  steps  of  the 
continental  congress  had  created  a  legal  status  for  the 


10  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATICS. 

LTuited  States,  not  only  as  a^^ainst  England  and  the  rest 
of  the  world,  but  also  in  relation  to  the  different  states, 
yet  it  eannot  be  questioned  that,  with  the  a(lo})tion  of  the 
articles  of  confederation,  a  revolution  was  acconi[)lislied. 
This  revolution  met  with  no  opposition  among  the  jieople. 
Tts  entii'o  coi'res])ondeiice  with  their  whole  political 
thought  and  impulse  was  generall}''  fully  recognized,  and 
another  advance  on  the  part  of  congress  would  unques- 
tionably have  met  Avith  an  opposition  not  to  be  ov^er- 
come. 

The  legal  consequences  of  the  decisive  steps  taken  by 
the  continental  congress  in  regard  to  the  rehition  of  the 
colonies,  /.  e.,  the  states,  to  each  other,  went  far  beyond 
the  actual  facts  of  the  case,  and  in  a  conflict  between  law 
and  fact  it  goes  without  saying  that  the  latter  must  tri- 
umph. The  ])opulation  of  the  states  was  so  little  one  peo- 
ple, and  felt  so  little  as  one  people,  that  they  wished  to  be 
one,  in  the  most  essential  matters,  only  far  enough  to  con- 
(|uer  independence,  and  to  assert  their  right  to  self-govern- 
ment.' It  was  supposed  that  the  articles  of  confederation 
had  preserved  the  powers  which  the  central  authority 
needed  for  the  accomplishment  of  this  first  and  most  impor- 
tant end  of  the  Revolution,  but  long  before  they  had  been 
ratified  b}^  the  last  legislature  (that  of  Maryland,  ]\[arch  1, 
1781),  the  bitterest  experience  had  made  it  a  question  of 
the  highest  importance  as  to  whether  this  view  was  sus- 
tained by  hard  facts.  The  weightiest  rights  of  sover- 
eignty essential  to  political  life  were,  of  course,  granted 
to  congress,  and  either  Avholly  withdrawn  from  the  sep- 
arate states  or  given  them  only  within  very  deeply  cut 
limits.     But  it  was  soon  evident  that  a  wholly  useless 

•The  fourth  article  contains  j)rovisions  in  regard  to  purely  internal 
relations,  and  especially  in  regard  to  the  interests  and  riglits  of  indi- 
viduals, wliich  i)aved  the  way  for  a  national  fusion. 


GENESIS    OF   THE    FEDERAL   CONSTITUTION.  11 

piece  of  political  machincy  had  been  created,  which, 
under  the  best  management,  could  turn  out  only  quite 
useless  work,  and  finally  could  not  have  been  kept  in 
order  at  all,  if  a  number  of  distinguished  men,  with  ex- 
traordinary patriotic  abandonment  and  unselfishness,  had 
not  constantly  put  their  shoulders  to  the  wheel,  and,  by 
their  great  example,  drawn  the  rest  of  the  people  so  far 
after  them  that  the  worst  was  always  happily  avoided, 
until,  with  the  help  of  France,  the  recognition  of  inde- 
pendence had  been  won.  The  question  early  pressed 
itself  upon  the  most  far-sighted  patriots  where  the  fault 
lay.  Experience  made  them  more  and  more  of  the  opin- 
ion that  the  fault  was  one  of  principle,  based  not  only 
upon  the  selfish  wish  of  the  states  to  remain  just  as  far  as 
possible  the  sole  masters  of  their  own  fates,  but  partly 
also  upon  the  fact  that  during  the  colonial  period  no  ex- 
perience had  been  gained  as  to  the  nature  and  proper 
conditions  of  existence  of  a  great  and  entirely  independ- 
ent political  commonwealth.  The  provisions  which  gave 
all  the  states  the  same  legal  weight,  although  their 
actual  importance  was  so  very  different  —  for  the  weight- 
iest decisions  the  approval  of  at  least  nine  states  was 
necessary, —  were  responsible  for  much,  but  the  real 
evil  evidently  lay  deeper.  Matters  were  not  in  a  bad 
shape  because  congress  failed  in  passing  the  necessary 
resolutions  and  laws,  but  because  its  resolutions  and 
laws  had  no  result.  The  articles  of  confederation  failed 
to  recognize  not  only  the  fact  that  a  free  commonwealth 
may  be  no  less  endangered  by  a  government  too  weak 
than  by  one  too  strong,  but  also  that  a  grant  of  rights  in 
itself  confers  no  power.  Eight  first  becomes  might  when 
means  are  given  it  to  make  itself  so,  and  these  means  had 
been  denied  to  congress  completely  and  on  principle.  It 
could  resolve  on  everything  necessary,  but  it  could  not 


12  COXSTITLTIONAL    LAW    OF    THE    UNITED    STATES. 

do  the  most  necessary  thing.  The  execution  of  its  reso- 
hitions  depended  wholly  upon  the  thirteen  state  govern- 
ments, to  whose  short-sightedness,  laxit\",  distrust  and 
separatism  it  could  oppose  onl}'  arguments  and  an  appeal 
to  patriotism,  which,  in  the  nature  of  things,  under  the 
most  favorable  circumstances,  could  have  only  a  partial 
result.  Congress  wished  to  be  a  government,  and  yet 
could  only  give  advice,  because  it  had  a  legal  will,  not  in 
reference  to  individuals,  but  only  as  regards  the  states. 
This  was  no  omission  in  the  articles  of  confederation,  but 
a  logical  consequence  of  their  fundamental  principle. 
They  left  no  room  for  organs  of  government.  The 
United  States  w^ere  a  confederation  with  a  federal  au- 
thority, but  without  a  federal  government;  and  they  had 
a  federal  law,  but  needed  no  federal  courts,  because  the 
states  w^ere  almost  exclusively  the  subjects  of  federal  law; 
and  behind  the  federal  courts  no  federal  power  was  cre- 
ated to  give  effect  to  their  judgments.^ 

1  Article  IX.  gives  congi-ess  the  power  to  establish  prize  courts  and 
' '  courts  for  the  trial  of  piracy  and  felonies  committed  on  the  liigh 
seas."  Moreover,  "  all  controversies  concerning  the  private  right  of 
soil  claimed  under  different  grants  of  two  or  more  states,"  and  "  all 
disputes  and  differences  now  subsisting,  or  that  hereafter  maj'  arise 
between  two  or  more  states,  concerning  boundary,  jurisdiction,  or 
any  otiier  cause  whatever,"  were  to  be  decided  by  federal  courts,  in 
case  one  of  the  parties  applied  to  congress.  But  these  courts  were 
not  permanent.  They  were  created  by  congress  ad  hoc,  and  that  in 
a  higlily  complicated  and  cumbrous  way.  The  view  expressed  in  the 
text  finds  its  direct  proof  in  the  provision  that,  "if  any  of  the  parties 
shall  refuse  to  subinit  to  the  authority  of  such  court,  or  to  appear  or 
defend  the  claim  or  cause,  the  court  shall  nevertheless  proceed  to 
pronounce  sentence  or  judgment,  which  shall  in  like  manner  be  final 
and  decisive."  But  nothing  was  said  as  to  what  should  happen  in 
case  of  a  stubborn  refusal  to  obey  the  judgment.  Reporting  the  de- 
cision to  congress  is  the  only  "  security  "  given  the  parties.  See  T. 
Sergeant :  On  the  National  Judiciary  Powers  Prior  to  the  Adoption 
of  the  Constitution,  appendix  to  P.  S.  Duponceau:  Jurisdiction  of 
United  States  Courts,  Fhila.,  1824. 


GENESIS   OF   THE    FEDERAL   CONSTITUTION.  13 

§  3.  Efforts  for  Reform.  During  the  war,  and  even 
before  the  articles  of  confederation  had  received  the  for- 
mal sanction  of  the  last  state,  the  knowledge  of  the  fact 
that  the  Union  could  not  endure  under  its  then  organiza- 
tion had  so  far  progressed  that  complaints  and  sorrows 
had  given  way  to  earnest  attempts  at  reform.  In  No- 
vember, 1780,  delegates  of  the  four  New  England  states 
and  of  New  York  met  at  Hartford.  Their  immediate 
object  was  to  place  the  finances  of  the  Union  upon  a 
firmer  basis,  and  especially  to  ensure  the  payment  of  in- 
terest on  the  federal  debt  through  federal  taxes  or  cus- 
toms, but  they  were  entirely  conscious  that  this  alone 
would  be  of  no  use.  "  All  government  supposes  the 
power  of  coercion,"  they  said  in  their  address  to  the 
states.  Of  course,  this  had  no  immediate  result.  One 
could  scarcely  have  been  expected.  It  gave,  however,  a 
strong  push  in  the  right  direction,  and  the  work  of  mould- 
ing public  opinion  never  ceased  thereafter  until  the  goal 
had  been  reached.  A  growing  necessity  forced  men  to 
lay  theii*  hands  to  the  work  again  and  again.  The  use- 
lessness  of  all  half-way  measures  showed  more  clearly, 
day  by  day,  the  only  road  to  safety.  Destruction  often 
seemed  unavoidable,  unless,  at  least,  the  worst  evils  could 
be  removed.  The  failure  of  the  attempts  to  accomplish 
even  this  constantly  drove  home  the  conviction  that  the 
evil  must  be  grappled  with  at  the  roots.  The  necessity 
of  obtaining  the  approval  of  nine  states  for  the  more 
weighty  decisions  of  congress,  and  of  getting  the  consent 
of  all  of  the  legislatures  for  any  constitutional  change, 
made  the  application  of  palliatives  impossible.  Since 
this  was  impossible,  a  radical  cure  had  to  be  found.  But 
the  struggle  of  many  years  over  the  palliatives  did  this 
further  great  good,  that,  day  by  day,  it  became  more 
clear  upon  what  points  attention  was  to  be  concentrated, 


14-  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

if  the  people  were  to  be  made  ripe  by  necessity  for  the 
adoption  of  a  reorganization  of  the  Union  upon  the  basis 
of  another  principle.  Later,  it  was  recognized  as  a  piece 
of  good  fortune  that  the  revolutionary  war  had  bec^n 
fought  out  under  the  articles  of  confederation,  and  the 
reorganization  of  the  Union  first  undertaken  after  inde- 
pendence had  been  won.  Under  the  pressure  of  the 
needs  of  war  single  improvements  might  have  been  more 
easily  carried  through,  but  the  deeper  and  the  more  im- 
portant these  partial  improvements  were,  so  much  the 
more  difficult  would  have  become  a  reorganization  of  the 
Union,  complete  and  based  upon  ])rinciple.  This  could 
not  possibly  have  been  sought  with  success  during  war, 
at  least  during  one  which  was,  to  a  certain  extent,  a  civil 
Avar.  Peace  alone  could  fully  show  where  and  how  far 
the  articles  of  confederation  failed  to  ensure  a  permanent 
Union.  Such  a  government  must  be  equal,  not  only  to 
the  exceptional  circumstances  of  a  war,  but,  before  every- 
tiiing  else,  to  the  accomplishment  of  the  aims  of  the 
Union  in  the  normal  condition  of  peace.  If  the  demands 
which  congress  had  to  meet  in  time  of  war  were  not 
only  different  from,  but  also  many  times  greater  than, 
those  of  peace,  yet  upon  the  other  side  patriotism  and 
the  overwiiehiiing  necessity  of  the  attainment  of  the  im- 
mediate end  of  the  Revolution  insured  more  willing  and 
careful  attention  to  the  needs  of  the  commonwealth  than 
when,  in  the  sober  selfishness  of  times  of  peace,  the  neces- 
sity for  this  attention  no  longer  forced  itself,  day  by  dav, 
upon  even  the  smallest  understanding.  As  the  pressure 
of  war  grew  weaker,  the  evils  of  an  unworkable  govern- 
ment first  fully  dev^eloped.  The  prophetic  phrase  of  the 
Hartford  convention  of  November,  1780,  that,  after  the 
acquisition  of  independence,  peace  and  freedom  could  be 
won  only  by  the  legal  consolidation  of  the  Union,  now 


GENESIS   OF   THE   FEDERAL   CONSTITUTION.  15 

found  its  fulfillment  in  a  fashion  which  opened  a  darker 
outlook  into  the  future  than  in  the  blackest  days  of  the 
war.  Now  the  most  far-sighted  felt  their  courage  sink, 
while  the  short-sighted  were  blind,  and  the  self-seekers 
and  ignorant  recklessly  sought  to  use  for  their  own  ad- 
vantage the  evils  which  preyed  on  the  life-blood  of  the 
Union,  The  political  thought,  feeling  and  will  of  the 
people  in  regard  to  the  Union  threatened  to  fall  into  a 
process  of  dry  rot.  The  best  men,  who  had  done  the 
best  in  time  of  war,  therefore  drew  very  close  together 
in  the  knowledge  that  danger  lay  in  delay  and  that  they 
must  not  relax  their  efforts  until  they  had  wrung  from 
selfishness,  from  doctrinaire  confusion,  and  from  the  nar- 
row pride  and  patriotism  of  the  separate  states,  the  salva- 
tion of  the  commonwealth  which  had  been  called  into 
life  at  such  a  terrible  cost. 

§  4.  History  of  the  Development  of  the  Constitu- 
tion. In  January,  1786,  the  legislature  of  Virginia  in- 
vited the  other  states  to  send  delegates  to  a  convention 
at  Annapolis,  in  order  to  consider  how  far  a  uniform 
system  was  necessary  for  the  regulation  of  commerce, 
and  to  make  proposals  on  this  point.  At  the  convention, 
which  met  in  September,  only  five  states  were  represented. 
Partly  on  account  of  this  scanty  representation,  and  partly 
because  they  saw  nothing  to  be  gained  from  the  considera- 
tion of  only  one  of  so  many  weighty  questions,  the  delegates 
resolved  to  leave  their  task  undone  and  to  call,  instead,  a 
general  convention  "  to  take  into  consideration  the  situa- 
tion of  the  United  States,"  and  to  ascertain  what  must 
be  done  "  to  render  the  constitution  of  the  federal  gov- 
ernment adequate  to  the  exigencies  of  the  Union."  The 
legislature  of  New  York  adopted  this  proposal  as  its  own. 
On  the  motion  of  its  delegates,  congress  voted  in  February, 
1787,  to  call  a  convention  at  Philadelphia,  "  for  the  pur- 


10  CONSTITL  TIOXAL    LAW    OF    THE    UNITED    STATES. 

pose  of  revising  the  articles  of  confederation,  and  report- 
ing: to  congress  and  the  several  legislatures  such  alterations 
and  ])ro  visions  therein  as  shall,  when  agreed  to  in  congress 
and  confirmed  by  the  states,  render  the  federal  constitu- 
tion adequate  to  the  exigencies  of  government  and  the 
preservation  of  the  Union."  All  of  the  legislatures,  with 
the  exception  of  that  of  Ehode  Island,  responded  to  this 
call  bv  naming  delegates.  The  convention  met  at  Phil- 
adelphia,  May  14.  It  was  the  25th  of  Ma}^  before  a 
sufficient  number  of  states  (seven)  were  represented  to  com- 
plete the  formal  organization  of  the  convention  by  the 
choice  of  Washington  as  presiding  officer,  and  to  begin 
work,  ^feanwhile,  the  time  had  not  been  suffered  to  slip 
by  unused.  The  delegates  from  Yirginia,  whose  official 
head  was  Edmund  Randolph,  but  whose  brain  was  James 
Madison,  had  agreed  among  themselves  that  a  simple 
modification  of  the  articles  of  confederation  would  not  do, 
but  that,  as  Washington  had  written  to  Madison  on  the  31st 
of  March,  it  was  their  duty  "  to  probe  the  defects  of  the 
constitution  to  the  bottom  and  provide  a  radical  cure." 
The  main  points  as  to  the  way  in  which  this  was  to  hap- 
pen had  been  reduced  to  writing,  and  they  were  laid 
before  the  convention  bv  Randolph,  in  order  to  give  a 
firm  basis  for  its  deliberations.  This  was  of  great  im- 
portance, for  Virginia  was  the  strongest  and  most  influen- 
tial state  of  the  Union.  The  tardiness  of  the  deleg-ates 
of  most  of  the  states  (Rhode  Island  never  sent  delegates 
to  the  convention)  was  not  adapted  to  strengthen  the 
hopes  of  the  ))atriots.  The  instructions  given  by  Dela- 
ware to  her  delegates,  to  insist  upon  it  that,  as  hereto- 
fore, every  state  should  have  an  equal  voice  in  the 
Union,  of  necessity  strengthened  the  fear  that  now  again 
no  result  would  be  reached.  Nevertheless,  the  conven- 
tion adopted  "Washington's  view  that  it  must  turn  out  a 


GENESIS   OF  THE    FEDERAL   CONSTITUTION.  17 

finished  piece  of  work,  even  if,  as  a  result,  its  proposals 
were  rejected.   Its  success  was,  of  course,  from  the  begin- 
ning greatly  endangered,  because  the  resolution  of  con- 
gress, literally  read,  imposed  upon  it  a  much  more  limited 
task,  and  the   instructions   of   its  delegates,  so   far   as 
these  fundamental  questions  were   concerned,   were  in 
part  in  harmony  with  the  resolution  of  congress.     But 
the  great  majority  of  delegates  were  of  the  opinion  that 
the  convention  was  not  to  be  bound  by  this  formal  invi- 
tation, if,  in  its  opinion,  its  aims  could  not   be   reached 
by  keeping  within  the    limits   set   by  that    resolution 
and   by  the  instructions  of  its  members.     Wholly  inde- 
pendent of  the  existing  law,  it  went  on  with  its  task  to 
work  out  a  plan  for  the  formation  of  a  Union  capable  of 
life  and  of  development.     It  considered  the  articles  of 
confederation  only  so  far  as  the 'experience  gained  under 
them  showed  the  errors  to  be  avoided,  and  always  with  a 
constant  and  comprehensive  appreciation  of  the  fact  that 
a  Union  capable  of   life  and  of  development  could  be 
formed  only  by  adapting  it  to  the  facts  of  the  past  and 
the  present,  and  not  by  doing  violence  to  them  for  the 
sake  of  any  theory.     The  articles  of  confederation  also 
had  not  been  a  product  of  doctrine  alone,  and  the  actual 
facts  which  had  found  in  them  an  adequate  expression 
were  still  a  strong  factor,  even  if  somewhat  weaker  than 
before  and  no  longer  with  the  same  claim  to  attention, 
because  far-reaching  changes  had  been  accomplished  or 
at  least  begun  in  the  political  feeling,  and  especially  in 
the  political  knowledge,  of  the  people.     The  knowledge 
that  all  the  faults  of  the  articles  of  confederation  must  be 
finally  referred  to  their  fundamental  principle  therefore 
could  not  mislead  the  convention.     By  adopting  exactly 
the  opposite  direction,  it  was  sure  not  to  wander  from  the 
right  path.     Although  it  was  compelled  by  necessity  to 
2 


18  CONSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

give  the  Union  another  principle  as  a  basis,  yet  the  great 
question  still  remained  whether  it  would  do  this  with  the 
necessary  completeness  and  follow  out  the  main  lines  of 
thought  to  their  necessary  results.  Even  if  it  decided  to 
do  so,  it  was  still  doubtful  whether  enough  of  the  spirit 
of  statesmanship  could  be  found  to  so  fashion  the  details 
of  its  task  that  on  the  one  side  sufficient  care  was  taken 
to  fully  satisfy  all  the  great  needs  of  the  state,  and  yet, 
upon  the  other  hand,  this  was  not  reached  by  a  consol- 
idation which  was  not  adapted  to  the  actual  condition  of 
affairs,  either  in  fact,  or,  at  any  rate,  in  the  opinion  of 
the  majority.  Every  page  of  the  history  of  the  Union 
up  to  that  time  testified  to  tlie  fact  that  this  was  a  task 
which  made  the  highest  demands  upon  the  political  in- 
sight, as  well  as  upon  the  patriotic  self-sacrifice,  of  the 
delegates.  The  greatest  difficulties  grew  out  of  the 
special  interests  of  the  slave-holders  in  the  southern 
states,  and  out  of  the  enormous  differences  in  the  size 
and  population  of  the  separate  states ;  differences  which, 
so  far  as  concerned  the  population,  were  sure  to  increase 
constantly.  These  special  interests  of  the  slave-holders 
were,  for  two  generations,  the  central  problem  of  the  his- 
tory of  the  United  States.  The  solution  was  found  in  a 
civil  war  which  lasted  four  years.  Since  in  this  book  the 
history  of  the  constitution  needs  to  be  touched  upon  only 
so  far  as  required  in  order  to  understand  the  constitu- 
tional law  of  to-day,  we  must  omit  any  discussion  of  the 
constitutional  provisions  concerning  slavery,  because, 
apart  from  some  indirect  consequences  which  will  be 
mentioned  by-and-by,  slavery  in  the  United  States  belongs 
as  completely  to  the  history  of  the  past  as  serfdom  in  Ger- 
many. Only  this  much  must  be  said,  that  the  representa- 
tives of  the  northern  states  agreed  upon  a  compromise 
because  some  of  the  delegates  on  the  other  side  declared 


GENESIS    OF   THE    FEDERAL   CONSTITUTION.  19 

that  their  states  would  never  adopt  a  constitution  which  did 
not  respond  to  their  demands  in  regard  to  this  overshad- 
owing interest.  Concerning  representation,  it  was  agreed 
that  every  five  slaves  should  be  reckoned  as  three  free- 
men. The  slave  states  thought  they  obtained  an  equiva- 
lent for  this  in  the  provision  that  direct  taxes  should  be 
levied  according  to  representation.  As  a  further  conces- 
sion to  the  slave-holder,  it  was  agreed  that  fugitive  slaves 
should  be  delivered  up  by  the  other  states  upon  demand. 
Finally,  the  immediate  suppression  of  the  African  slave 
trade  was  postponed,  but  congress  was  given  the  right  to 
forbid  the  importation  of  slaves  after  twenty  years,  i.  e., 
in  1808.  It  was  thought  that  this  provision  ensured  the 
gradual  dying  out  of  slavery,  something  which  was  still 
generally  considered,  or  at  least  declared,  desirable.  In- 
asmuch as  there  was  still  no  opposition  to  the  opinion 
that  slavery  was  a  curse  laid  upon  the  land  by  England, 
great  care  was  taken  not  to  give  the  words  slave  and 
slavery  a  place  in  the  constitution.  They  were  expressed 
by  the  circumlocution :  "  persons  held  to  service  or  labor." 
The  question  as  to  what  should  be  done  with  the  slaves 
as  far  as  representation  was  concerned  had  had,  as  its 
condition  precedent,  that  the  absolute  equality  of  the 
states  established  by  the  articles  of  confederation  could 
no  longer  endure,  i.  e.,  that  each  state  could  no  longer 
have  an  equal  voice  in  the  government  of  the  Union.  But 
with  this  change  the  Union  ceased  to  be  a  league  of  states. 
Whatever  arrangement  was  made,  the  Union  was  changed 
i-nto  a  federal  state.  How  thoroughly  this  was  to  be 
done,  and  how  strongly  the  national  tendency  was  to  ap- 
pear in  this  consolidation,  naturally  depended,  however, 
in  the  first  place,  if  by  no  means  exclusively,  upon  the 
question  how  far  and  in  what  way  the  actual  importance 
of  the  separate  states  was  to  be  the  basis  of  their  lawful 


20  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

])articipation  in  the  federal  power.  The  smaller  states 
wished  to  maintain,  just  as  far  as  possible,  the  then  con- 
dition of  affairs,  and  the  large  ones  Avished  to  make  the 
reform  as  thorough  as  possible.  This  was  not  on  account 
of  any  national  feeling.  The  position  of  each  state  was 
determined  by  its  separate  interests.  The  smaller  states 
thought  that  in  a  short  time  they  must  sink  to  the  posi- 
tion of  mere  hangers-on,  simply  the  recipients  of  the  laws 
dictated  by  the  large  states,  if  the  constituent  members 
of  the  Union  were  to  find  their  representation  amid  the 
federal  powers  no  more  as  such  members,  but  according 
to  their  population.  The  large  states,  to  whom  the  actual 
or  at  least  the  claimed  extent  of  their  territory  and  their 
natural  riches  promised  a  development  of  power  scarcely 
to  be  reckoned,  did  not  wish  to  endanger  this,  and  to  let 
their  people  sink,  in  a  cei'tain  sense,  into  citizens  of  the 
second  class,  ten,  twenty,  or  one  hundred  of  whom  would 
be  counted  in  all  federal  alfairs  only  for  as  much  as  each 
citizen  of  the  small  states.  Since  the  latter  based  their 
demands  upon  the  actual  law,  and  the  application  of  force 
could  not  be  tliouglit  of,  and  since  the  former  were  not  at 
all  in  favor  of  a  complete  national  fusion,  a  compromise 
between  the  two  opposing  interests  had  to  be  found.  It 
was  found  when  the  law-making  power  was  shared  be- 
tween two  co-ordinate  houses  —  one  of  them  organized, 
as  the  large  states  wished,  upon  the  democratic  principle 
of  numbers,  while  in  the  other,  the  states,  as  such,  were 
represented,  although,  as  I  shall  show  later,  the  character 
of  a  house  of  states  was  not  given  to  it  in  other  respects. 
Jefferson,  in  his  democratic  doctrinairism,  even  after 
the  constitution  had  come  to  life,  complained  bitterly  of 
the  adoption  of  the  two-chamber  system,  but  he  forgot 
that  this  would  not  have  happened  in  the  first  place  if 
the  choice  had  been  simply  between  one  and  two  houses. 


GENESIS    OF   THE   FEDERAL   CONSTITUTION.  21 

It  happened  because  this  decision  made  possible  the  estab- 
lishment of  the  Union  in  a  way  in  which  it  could  live. 
So  far  as  this  was  concerned,  the  weightiest  point  was 
that  now,  for  the  first  time,  a  real  law-making  power  had 
been  created.  Congress  was  no  longer  obliged,  upon  the 
address  of  the  states,  to  pass  resolutions  in  the  shape  of 
laws,  but  it  could  now  pass  laws  for  the  people  of  the 
United  States,  and  could  intrust  the  execution  of  federal 
laws  affecting  single  citizens  to  the  proper  federal  pow- 
ers. The  Union  had  obtained  such  an  independent  law- 
making power  that  it  could  no  longer  be  deprived  of  its 
own  permanent  courts.  The  emancipation  of  the  Union 
from  the  state  governments  depended  directly  upon  its 
emancipation  from  the  state  courts,  for  it  would  have 
been  absurd  to  give  it  a  wider  sphere  of  jurisdiction  of 
its  own,  and  yet  to  deny  it  the  organs  needed  for  exist- 
ence within  that  sphere.  The  union  of  an  independent 
law-making  power,  of  an  independent  executive  and 
administration  and  of  independent  courts  was,  however, 
a  national  government  in  the  full  sense  of  the  word.  So 
far  as  principles  were  concerned,  Washington's  wish  had 
come  to  fulfillment.  The  convention  had  decided  upon 
the  adoption  of  a  radical  cure.  It  was  not  simpl}-  that 
the  powers  of  the  single  federal  authority  (the  old  con- 
gress) were  now  shared  between  three  co-ordinate  factors, 
but  these  were  actual  national  powers  which  together 
formed  a  national  government,  because  they  Avere  en- 
dowed not  only  with  rights,  but  with  the  power  to  enforce 
those  rights.  So  far  as  everything  within  the  domain  of 
the  national  authority  was  concerned,  the  political  will 
of  the  commonwealth,  expressed  in  a  constitutional  way, 
was  placed  high  above  the  political  will  of  the  constituent 
members  of  that  commonwealth  and  of  their  political 
organs.     The  subordination  of   the  latter  was  brought 


:22  CONSTITUTIONAL    LAW    OF    TUE    UNITED    STATES. 

about  by  the  use  of  those  fixed  forms  in  which  the  life  of 
a  inodei'ii  constitutional  and  lawful  state  can  pureue  its 
steady  and  orderly  course. 

Opinions  were  sharj)ly  opposed,  not  only  about  the 
ground-plan  of  the  constitution,  but  also  about  the  de- 
tails by  which  this  plan  was  to  be  filled.  The  holders  of 
all  of  tliese  views  were  forced,  now  one  and  now  another, 
to  remember  not  to  let  the  better  become  the  enemy  of 
the  good,  and  not  to  fear  the  worst  possible  consequences, 
because  in  this  or  that  state  of  affairs  something  either 
undesirable  or  utterly  repugnant  might  happen.  Tlie 
convention  could  not  possibly  draw  a  constitution  which, 
in  the  forum  of  theory,  would  appear  as  a  blameless 
and  perfectly  harmonious  work.  But  such  a  constitu- 
tion would  have  been  of  scant  use  to  the  United  States, 
for  the  real  conditions  could  not  be  compressed  into 
rigidly  logical  form.  The  convention,  whicli  brought  its 
work  to  a  close  September  17,  characterized  it  in  its 
address  to  congress  as  ''  the  result  of  a  spirit  of  amity 
and  of  mutual  deference  and  concession."  Since  its  task 
had  not  been  to  draw  a  model  constitution,  this  was  the 
best  recommendation  of  its  work,  for,  as  it  said,  many- 
sided  concession  was  "  rendered  indispensable "  by  the 
"  peculiarity  of  our  political  situation,"  and  in  the  nature 
of  things  that  could  not  happen  which  the  welfare  of  all 
demanded  unless  all  made  sacrifices  to  that  end.  It  laid 
claim  to  the  highest  grade  of  perfection  for  its  work, 
gave  it  the  highest  praise  possible,  when  it  expressed  the 
conviction  that  the  constitution  was  "liable  to  as  few 
exceptions  as  could  reasonably  have  been  expected." 
Whether  this  self-criticism  was  well  founded  only  tlie 
actual  trial  of  the  constitution  could  show.  And  whether 
that  actual  trial  would  be  had  was  still  by  no  means  cer- 
tain.    It  was  only  too  sure  that  the  draft,  as  it  is  called 


GENESIS   OF   THE    FEDERAL   CONSTITUTION.  23 

in  the  address  to  congress,  would  not  command  universal 
acquiescence.  Since  the  convention  was  convinced  that 
the  fate  of  the  Union  depended  upon  the  adoption  or  re- 
jection of  the  constitution,  it  had  taken  care  not  to  leave 
the  weal  and  woe  of  the  commonwealth  wholly  in  the 
hands  of  a  lessening  minority.  Although  the  articles  of 
confederation  required  the  consent  of  all  the  states  for  the 
least  change  in  the  constitution,  and  the  convention  had 
only  been  authorized  to  consider  a  revision  of  these  arti- 
cles, it  had  yet  ventured  in  its  proposal  for  a  radical  re- 
organization of  the  Union  to  adopt  the  provision  that  the 
new  constitution  should  come  into  force  as  soon  as  it  had 
been  adopted  by  nine  states.^  This  did  not  involve  any 
tyrann}"^  by  a  majorit}'^,  because  it  was  expressly  provided 
that  the  ratification  was  to  be  good  only  for  the  ratifying 
states.-  In  case  four  states  or  less  than  four  did  not  ratify, 
they  thus  ipso  facto  cut  themselves  out  of  the  Union  until 
they  thought  good  to  re-enter  it,  or  the  other  states, 
perhaps  by  force  of  irresistible  necessity,  compelled  them 
to  do  so.  But  such  compulsion  certainly  could  have  been 
tried  with  success  only  against  the  smaller  states,  and  in 
that  case,  as  we  shall  later  see  more  closely,  the  whole 
fundamental  law  of  the  new  federal  power  would  have 
been  shattered  and  racked  in  a  terrible  way.  This  pro- 
vision was  therefore  a  two-edged  sword.  On  the  one 
hand  it  was  made  very  diflBcult  for  political  blindness  and 
the  lack  of  national  feeling  to  hinder  the  reorganization 

1  Cooley,  Tlie,  General  Principles  of  Constitutional  Law,  page  16, 
rightly  says:  "  It  was  a  revolutionary  proceeding." 

2  Since  Schlief ,  Die  Verfassung  der  Nordamerikanischen  Union,  is 
often  cited  by  German  authors,  I  think  it  my  duty  to  show  by  ex- 
ample how  little  trustworthy  a  guide  he  is.  He  says,  p.  8:  "The 
fundamental  law,  according  to  article  7,  was  to  come  into  force  for 
all  the  states  represented  in  the  convention  at  Philadelphia,  when 
nine  of  them  approved  it." 


2:1:  CONSTITDTIONAL    LAW    OF    THE    UNITED    STALES. 

of  tlie  Union,  but  on  the  other  hand  this  niigiit  easily 
bring  about  such  an  explosion  of  these  forces  that  the 
damage  tlone  could  be  repaired,  if  at  all,  only  by  doing- 
violence  to  the  fundamental  principles  of  the  Union. 
There  was  another  scarcely  less  signiticant  possibility.  It 
might  be  that  nine  or  even  ten  states  would  adopt  the 
constitution,  and  yet,  as  a  result  of  the  opposition  of  one 
or  two  states,  the  Union,  in  its  new  organization,  backed 
by  force  of  law,  and  with  a  constitution  containing  within 
itself  all  the  conditions  of  life  and  development,  would 
yet  be  from  the  very  beginning  a  torso,  incapable  of  life. 
For  an  instant  it  seemed  as  if  this  mischance  would  hap- 
pen. 

June  21, 17S8,  Xew  Hampshire  ratified  the  constitution. 
She  was  the  ninth  state  to  do  so.  Among  those  which 
had  not  ratified  it  were  Yirginia  and  Xew  York.  The 
first  had  taken  such  a  position  in  the  Union  since  the  days 
of  the  continental  congress,  that  the  nation,  without  Yir- 
ginia, would  have  been  like  Hamlet  without  the  role  of 
Hamlet.  Public  opinion  was  so  evenly  divided  in  Yir- 
ginia, that  a  very  little  would  have  sufficed  to  turn  the 
balance  in  the  wrong  direction.  From  the  beginning  of 
the  debates  in  the  ratification  convention  it  was  easy  to 
see  that  the  simple  rejection  of  the  constitution  was  not 
to  be  feared,  but  up  to  the  last  instant  it  seemed  not  im- 
jx)ssible  that  the  ratification  would  be  merely  a  conditional 
one.  Many  not  only  shared  Patrick  Henry's  belief  that 
Yirginia  was  in  a  position  to  dictate  her  own  conditions 
to  the  other  states,  but  they  also  agreed  with  liim  in  his 
wish  to  do  so  in  such  a  way  that  her  ratification  should 
be  made  dependent  upon  the  adoption  of  certain  amend- 
ments by  the  other  states.  In  the  vote  upon  this  main 
proposition,  the  opposition  came  within  eight  votes  of  a 
majority,  and  the  simple  ratification  was  then  carried  by 


GENESIS    OF   THE    FEDERAL   CONSTITUTION.  25 

eighty-nine  to  seventy-nine.  In  New  York,  the  condition 
of  affairs  was  somewhat  different.  New  York  was  then 
far  removed  from  being  what  she  is  now,  the  Empire 
State,  but  it  could  not  be  denied  that  she  had  a  great 
future,  and  her  geographical  position  from  the  ocean  to 
Lake  Erie  made  her  an  absolute  necessity.  If  she  did  not 
come  into  the  Union,  it  was  torn  asunder  into  two  halves 
which  could  not  possibly  remain  bound  together;  for  the 
geographical  continuity  of  the  national  territory  was  a 
condition  precedent  of  that  free  exchange  of  opinions, 
customs  and  interests,  the  difference  in  which  had  been 
stigmatized  by  the  Philadelphia  convention  in  the  address 
to  congress  as  the  main  source  of  the  difficulties  with 
which  it  had  had  to  fight.  "While  in  Kew  York,  Alex- 
ander Hamilton,  with  the  aid  of  John  Jay,  and  especially 
of  Madison,  wrote  in  the  eighty-five  numbers  of  the  Fed- 
eralist the  classic  argument  against  the  articles  of  confed- 
eration, and  in  favor  of  the  new  constitution,  yet  here 
also  the  opposition  was  the  most  passionate  and  stub- 
born. Yates  and  Lansing,  who,  with  Hamilton,  repre- 
sented the  state  in  Philadelphia,  had  been  sustained  b}'^ 
public  opinion  when  they  withdrew  from  the  convention, 
because  it  over-passed  its  powers.  Now  the  opposition, 
led  by  Governor  Clinton,  was  so  obstinate  that  even  Ham- 
ilton doubted  for  an  instant  whether  it  would  not  compel 
concessions  to  it.  If  Madison  and  his  friends  had  not  car- 
ried the  day  in  Virginia,  the  friends  of  the  constitution  in 
New  York  would  unquestionably  have  lost  the  victory. 
But  even  the  example  of  Virginia  weakened  the  opposition 
in  the  ratification  convention  at  Poughkeepsie  only  so  far 
that  they  were  willing  to  agree  to  ratification  if  the  state 
reserved  the  right  of  re-calling  it  in  case  the  other  states 
did  not  approve  the  amendments  demanded  by  New  York. 


26  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

Madison,  who  was  asked  by  Hamilton  for  his  opinion 
upon  this  proposal,  wrote :  "  My  opinion  is  that  a  reser- 
vation of  a  right  to  withdraw,  if  amendment  be  not 
decided  on,  under  the  form  of  the  constitution,  within  a 
certain  time,  is  a  mnditlonal  ratification;  that  it  does  not 
make  i^ew  York  a  member  of  the  new  Union,  and,  con- 
sequently, that  she  could  not  be  received  on  that  plan. 
The  constitution  requires  an  adoption  in  toto  and  forever. 
It  has  been  so  adopted  by  the  other  states.  An  adoption 
for  a  limited  time  Avould  be  as  defective  as  an  adoption 
of  some  of  the  articles  only.  In  short,  any  condition 
whatever  must  vitiate  the  ratification.  The  idea  of  re- 
serving a  right  to  withdraw  was  started  at  Richmond, 
and  considered  as  a  conditional  ratification,  which  was 
itself  abandoned  as  worse  than  a  rejection."  This  letter, 
which  expressed  in  an  authoritative  way  the  views  of  the 
father  of  the  constitution  upon  the  legal  nature  of  the 
federal  compact,  is  of  the  highest  importance  in  view  of 
the  war  fought  for  five  and  seventy  years  over  this  fun- 
damental question, —  a  war  the  final  history  of  which  was 
written  in  blood.  The  letter  gave  the  day  to  the  friends 
of  the  constitution.  On  July  25,  the  ratification  conven- 
tion, by  a  majority  of  five  votes,  decided  for  an  uncon- 
ditional ratification.  After  this,  it  was  unanimously 
voted  to  request  the  legislatures  to  call  a  new  convention 
in  order  to  pass  upon  the  amendments  proposed.  March 
4,  1TS9,  the  nG.\Y  federal  powers  came  into  existence, 
although  Xorth  Carolina  and  Rhode  Island  had  not  yet 
adopted  the  constitution.  The  legal  position  which  these 
two  states  occupied  in  regard  to  the  Union  was  not 
sharply  insisted  upon,  because  their  delay  could  not  be  of 
any  especial  importance,  and  no  one  doubted  that  they 
would  soon  overcome  their  scruples.      North  Carolina 


GENESIS   OF   THE   FEDERAL   CONSTITUTION.  27 

speedily  ratified  (November  21,  1Y89).  Little  Khode 
Island  waited  until  May  29,  1790,  and  then  decided  upon 
acquiescence  only  by  a  majority  of  three  votes. 

John  Quincy  Adams  said  in  a  speech  at  the  fiftieth 
jubilee  of  the  constitution  that  it  was  wrung  from  the 
people  through  "grinding  necessity."  This  was  true. 
Hamilton  had  written  in  the  Federalist:  "  The  establish- 
ment of  a  constitution,  in  time  of  profound  peace,  by  the 
voluntary  consent  of  a  whole  people,  is  a  prodigy.,  to  the 
completion  of  which  I  look  forward  with  trembling  anx- 
iety." If  this  miracle  now  happened,  it  was  due  to  the 
fact  that  the  hard  lessons  of  daily  experience  had  finally 
given  wide  circles  of  the  "  reluctant  people  "  a  glimmer- 
ing knowledge  of  the  great  truth  that,  as  he  had  hitherto 
said :  "  A  nation  without  a  national  government  is,  in  my 
view,  an  awful  spectacle."  Gouverneur  Morris  had  ex- 
plained, in  Philadelphia,  his  approval  of  the  constitution 
by  saying  that  the  question  was  simply:  "  Shall  there  be 
a  national  government  or  a  general  anarchy  ? "  In  the 
same  way  Washington  had  written,  December  14,  1787, 
that  the  choice  lay  only  between  the  adoption  of  the  consti- 
tution and  anarchy,  for,  he  had  added,  if  another  conven- 
tion is  tried,  its  members  will  be  more  at  odds  than  in  the 
first ;  they  will  agree  upon  no  common  plan ;  either  this 
constitution  must  be  adopted  or  the  Union  dissolved. 
Only  the  conviction  that  further  experimenting  had  be- 
come impossible,  and  that  a  trial  must  be  made  of  this 
constitution  if  the  nation  was  to  be  rescued  from  the 
wretched  stagnation  of  all  interests  under  the  articles  of 
confederation,  wrung  the  adoption  of  the  constitution 
from  political  doctrinairism  and  from  particularist  self- 
ishness. Moreover,  it  had  been  adopted  by  all  of  the 
states  without  the  application  of  any  outside  force.  This 
was  the  decisive  fact  for  the  future,  and  not  the  particular 


'2b  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

arguments  which  here  and  there  had  carried  the  day.  Xo 
state  could  rightly  deduce  from  the  history  of  its  develop- 
ment the  right  to  cut  loose  from  it.  If  the  duties  and 
the  limits  of  self-government  were  found  to  be  a  heavy 
chain,  yet  each  state  had,  by  a  full  and  free  expression  of 
its  own  will,  fastened  this  fetter  upon  itself;  had  placed 
itself  under  the  control  of  this  fundamental  law;  and  had 
done  so  in  the  most  formal  way.  The  Philadelphia  con- 
vention had  not  submitted  its  work  to  the  legislatures 
for  ratification,  but  had  demanded  that  the  legislatures 
should  leave  the  decision  to  conventions  called  for  this 
particular  purpose.  In  accordance  with  the  recommen- 
dations of  congress,  this  demand  had  been  carried  out  in 
all  the  states.  The  states  were  not  bound  to  the  consti- 
tution through  the  state  governments,  but  the  people,  the 
sole  source  of  all  political  power  in  a  republican  govern- 
ment, had  ratified  the  constitution  through  their  represent- 
atives, chosen  ad  hoc.  The  United  States  had  therefore 
ceased  to  be  a  confederation,  and  had  become  in  truth  a 
Union.  The  instrument  under  which  they  had  decided 
henceforth  to  live,  not  only  was  no  longer  called  articles 
of  confederation,  but  it  was  no  longer  a  confederation  com- 
pact. It  was  a  union  compact.  It  was,  in  the  full  sense 
of  the  word,  a  constitution,  a  fundamental  law  of  the 
state,  a  law  which  could  be  changed  only  in  the  manner 
provided  by  itself,  could  be  done  away  with  only  by  gen- 
eral and  free  consent,  and  could  be  overthrown  only  by 
revolution,  but  could  never,  and  under  no  circumstances, 
be  nullified  by  one  or  more  states.' 

§  5.  The  Fifteen  Amendments.  The  friends  of  the 
constitution  had  believed  that  they  must  stand  firm  in 
their  demand  for  its  unconditional  adoption,  but  they  had 
not  thereby  committed  themselves  to  the  view  that  the 

1  Texas  vs.  White,  Wallace,  VII.,  726. 


GENESIS   OF   THE    FEDERAL   CX)N8TITDTI0N.  29 

work  of  the  Philadelphia  convention  could  not  be  im- 
proved. As  soon  as  the  constitution  had  come  into  effect, 
this  question  began  to  be  discussed.  It  was  brought  to 
an  issue  in  the  manner  provided  by  the  constitution.  The 
friends  of  the  constitution  would,  of  course,  have  been 
slow  to  consent  to  material  changes  as  long  as  its  provis- 
ions had  not  been  subjected  to  the  only  sufficient  proof, 
that  of  experience.  Criticism,  however,  was  not  at  first 
directed  against  what  it  provided,  but  against  what  it 
either  did  not  provide,  or,  in  the  opinion  of  the  opposi- 
tion, left  doubtful.  They  proposed  for  the  most  part  not 
changes  but  additions,  and  the  victors  consented  to  this 
the  more  willingly,  since  from  the  beginning  they  had 
sought  to  weaken  the  opposition  by  the  assertion  that 
everything  which  they  wished  to  see  expressly  set  forth 
was  implied  in  the  silence  of  the  constitution  on  the  ques- 
tions at  issue.  Ten  amendments  were  proposed  by  the 
first  congress  and  adopted  by  the  necessary  number  of 
legislatures.  The  first  eight  additional  articles  take  cer- 
tain things  out  of  the  legislative  control  of  congress,  and 
guarantee  to  individuals  certain  rights  and  the  mainte- 
nance of  certain  forms  of  law,  thought  to  be  sure  safe- 
guards against  abuse  of  power  and  injustice.  The  ninth 
declares  that  the  enumeration  of  certain  rights  is  not  to 
be  construed  to  deprive  the  people  of  others  not  enumer- 
ated, "  retained  by  "  the  people.  The  tenth  provides  that 
"  the  powers  not  delegated  to  the  United  States  by  the 
constitution,  nor  prohibited  by  it  to  the  states,  are  re- 
served to  the  states  respectively,  or  to  the  people."  On 
account  of  the  fundamental  idea  from  which  these  ten 
additional  articles  sprang,  they  were  and  are  often  called 
the  American  Bill  of  Eights.  This  phrase,  borrowed 
from  well-known  events  in  the  history  of  England  dur- 
ing the  seventeenth  century,  and  the  contents  of  the 


3C>  COXSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

first  eight  articles,  clearly  show  how  much  the  political 
thought  of  this  generation  found  its  point  of  departure 
in  the  internal  struggles  of  the  mother-land,  and  how  far 
it  was  still  removed  from  fully  recognizing  the  essential 
differences  in  the  actual  conditions  of  the  two  countries. 
However,  no  one  in  the  United  States  will  to-day  deny 
that  experience  has  justified  those  who  were  not  content 
with  the  legal  results  to  be  deduced  from  the  silence  of 
the  constitution  upon  the  questions  at  issue,  but  wished 
express  provisions  which  should  give  the  least  possible 
occasion  for  a  controversy. 

The  eleventh  article,  which  was  recommended  by  the 
third  congress  at  its  second  session  (179-i;  to  the  legisla- 
tures, bears  quite  a  different  character.  It  declares  that 
no  state  can  be  brought  before  the  federal  courts  by  cit- 
izens of  another  state,  or  by  subjects  of  a  foreign  state. 
This  provision,  which  has  given  rise  to  much  complaint, 
and  has  very  recently  been  again  vigorously  discussed, 
was  partly  a  new  manifestation  of  the  spirit  which  before 
the  adoption  of  the  constitution  had  been  the  dominant 
one,  but  was  especially  due  to  the  feeling  that  it  was  de- 
rogatory to  the  dignity  of  a  state  to  let  itself  be  dragged 
into  court  by  individuals  as  a  party  with  the  same  stand- 
ing before  the  court  as  themselves. 

The  twelfth  article  provided  a  new  method  of  electing 
the  president  and  vice-president.  It  was  proposed  at  the 
first  session  of  the  eighth  congress  (1803)  as  a  result  of 
the  discomforts  and  dangers  which  in  the  fourth  presi- 
dential election  had  resulted  from  the  original  provisions.^ 

The  thirteenth,  fourteenth  and  fifteenth  amendments, 
passed  respectively  at  the  second  session  of  the  thirty- 
eighth  congress,  the  first  of  the  thirty-ninth,  and  the  third 
of  the  fortieth,  were  caused  by  the  civil  war,  and  relate 

1  See  my  Constitutional  History  of  the  United  States,  I,  168-176. 


GENESIS   OF   THE   FEDERAL   CONSTITUTION.  31 

to  the  abolition  of  slavery,  to  different  questions  which 
arose  from  the  reconstruction  of  the  terribly  shattered 
Union,  and  to  the  enfranchisement  of  the  negroes  and 
former  slaves.' 


^The  proclamation  issued  by  W.  H,  Seward,  as  secretary  of  state, 
in  pursuance  of  a  law  of  April  20,  1818,  announcing  that  the  thir- 
teenth amendment  had  become  a  part  of  the  constitution,  was  dated 
December  18,  1865.  The  seceded  states  had  been  notified  by  congress 
and  the  president,  that  the  adoption  of  this  amendment  was  a  condi- 
tion precedent  to  their  re-admission  into  the  Union.  The  reconstruc- 
tion bill  was  sent  to  the  president  just  before  the  close  of  the  session. 
It  was  not  signed  by  him,  but  in  a  proclamation  dated  July  8,  1864, 
Lincoln  declared  himself  to  be  in  substantial  accord  with  its  provis- 
ions. It  may  be  said  with  considerable  confidence  that  even  without 
this  compulsion  the  necessary  number  of  states  would  have  approved 
the  amendment,  but  yet  it  is  not  to  be  questioned  that  the  consent  of 
part  of  the  states  was  obtained  under  a  certain  compulsion.  So, 
too,  it  must  be  recognized  as  an  anomaly  that  states  which  were 
actually  at  the  time  neither  full  members  of  the  Union,  nor  entitled 
to  equal  rights  under  it,  voted  upon  an  amendment  to  the  constitu- 
tion. 

The  definitive  proclamation  about  the  fourteenth  amendment  was 
dated  July  28,  1868.  A  proclamation  of  July  20  had  declared  the 
amendment  adopted  if  the  ratifying  resolutions  of  Ohio  and  New 
Jersey  were  to  be  considered  as  of  full  force  and  effect,  although 
these  states  (in  January  and  April  respectively)  had  rescinded  these 
resolutions.  Congi-ess  was  not  content  with  the  form  of  this  procla- 
mation. It  passed  a  resolution  July  21,  which  declared  that  the 
amendment  had  been  adopted,  and  named  Ohio  and  New  Jersey 
among  the  ratifying  states.  Thereupon  Seward  issued  his  second 
proclamation  with  express  reference  to  the  resolution  of  congress. 
Tlie  question  whether  a  state  has  a  right  to  recall  its  consent  as  long 
as  an  amendment  has  not  yet  become  an  actual  part  of  the  constitu- 
tion has  not  yet  been  fully  decided.  For  judicial  decisions  "in  a 
somewhat  analogous  case,"  holding  that  the  approval  once  given  re- 
mains binding,  see  Cooley,  The  General  Principles  of  Constitutional 
Law  in  the  United  States  of  America,  p.  204.  In  the  fourth  edition 
of  Story's  Commentaries,  edited  by  Cooley,  II.,  pp.  652,  653,  the 
learned  judge  shows  himself  decidedly  inclined  to  the  opposite  opin- 
ion.   Oregon's  recall  of  her  approval  was  evidently  of  no  effect. 


6'Ji  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

Other  amendments  to  the  constitution  have  often  been 

proposed,  but  these  have  failed  to  receive  the  necessary 

number  of  votes,  either  in  cono^ress  or  amono-  the  states. 

Experience  has  shown  that  the  ])rovisions  of  tlie  constitu- 

^tion  about  amendments  are  sufficient  on  the  one  hand  to 

^  meet  the  demands  of  development,  and  on  the  other  to 

\  put  so  strong  a  curb  upon  a  restless  search  after  novelty 

^  that  the  democratic  republic  has  been  more  conservative 

in  its  fundamental  law  than  any  state  whatever  of  the 

European  continent. 

^  C).  The  Territory  of  the  Union  and  its  Constitu- 
ent Memders.  The  original  boundaries  of  the  territory 
of  the  I'nion  could  not  exactly  be  defined,  because  the 
provisions  about  them  in  the  charters  of  a  part  of  the 
colonies  were  decidedly  vague.  Even  the  treaty  of  peace 
was  not  entirely  clear  on  this  question.  The  United 
States  have  repeatedly  been  involved  in  disputes  about 
boundaries  with  England.  Part  of  these  disputes  were  of  a 
later  origin.  All  of  them,  however,  have  been  peaceably 
settled,  Avhich  is  equivalent  to  saying  that  the  claims  of 
the  United  States  have  not  always  been  completely 
granted.  This  was  especially  so  in  the  compromise  which 
brought  to  an  end  the  controversy  of  many  years  over 
the  Oregon  boundary.  They  accepted  a  very  small  part 
of  their  original  claim.'  But  if  they  could  not  obtain 
everything  which  they  believed  might  be  claimed  as  their 
own,  or  might  be  got,  yet  their  territory,  by  purchase,  by 
the  provisions  of  treaties  of  peace  and  other  treaties,  and 
by  annexation,  grew  to  an  amazing  extent.     While  the 

because  it  did  not  take  place  until  after  the  issue  of  Seward's  procla- 
mation. 

The  fifteenth  amendment  was  declared  adopted  by  a  proclamation 
of  March  30,  1870. 

1  See  my  Constitutional  History, \o\.  III.,  chaps.  2,  6,  8  and  13. 


GENESIS   OF   THE   FEDERAL   CONSTITUTION.  33 

\ 

thirteen  original  states,  New  Hampshire,  Massachusetts, 
Rhode  Island,  Connecticut,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Car- 
olina, South  Carolina  and  Georgia,  have  within  their 
present  boundaries  only  325,065  square  miles,  the  whole 
territory  of  the  Union,  according  to  the  latest  figures, 
now  contains  3,602,990  square  miles.  The  states  which 
have  been  made  out  of  the  lands  ceded  to  the  Union  by 
the  original  states,  and  out  of  the  territory  more  lately 
acquired,  contain  1,761,695  square  miles.  There  are 
twenty-five  of  them,  which  have  been  admitted  into  the 
Union  in  the  following  order :  ^  Kentucky,  February  4, 
1Y91  (June  1,  1T92) ;  Vermont,  February  18,  1791  (March 
4,  1791);  Tennessee,  June  1,  1796;  Ohio,  April  30,  1802 
(November  29,  1802);  Louisiana,  April  8,  1812  (April  30, 
1812);  Indiana,  December  11,  1816;  Mississippi,  Decem- 
ber 10,  1817;  Illinois,  December  3,  1818;  Alabama,  De- 
cember 14,  1819;  Maine,  March  3, 1820  (March  15,  1820); 
Missouri,  March  2,  1821  (August  10,  1821):  Arkansas, 
June  15,  1836;  Michigan,  January  26,  1837;  Florida, 
March  3, 1845 ;  Iowa,  March  3, 1845  (December  28, 1846) ; 
Texas  (resolutions  of  annexation  were  passed  March  1, 
1845),  December  29, 1845 ;  Wisconsin,  March  3, 1847  (May 
29,  1848) ;  California,  September  9, 1850 ;  Minnesota,  May 
4,  1858  (May  11,  1858);  Oregon,  February  14, 1859;  Kan- 
sas, January  29,  1861;  West  Virginia,  December  31, 1862 
(June  19,  1863);  Nevada,  March  21,  1864  (October  31, 
1864);  Nebraska,  February  9,  1867  (March  1,  1867);  Col- 
orado, March  3,  1875  (August  1,  1876).  The  Union, 
therefore,  consists,  at  the  present  time  (1886),  of  thirty- 
eight  states,  with  an  area  of  2,086,760  square  miles.  The 
remainder  of  the  national  territory  contains  nine  organized 

1 1  give  the  date  of  the  act  of  admission,  and,  if  the  actual  entry 
into  the  Union  took  place  later,  I  give  that  date  also  in  parenthesis. 


34  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

territories,  the  Indian  Territory,  which  has  no  territorial 
government,  and  the  District  of  Columbia,  the  seat  of 
the  federal  government.  Tlie  territories  were  organized 
in  the  following  order :  New  Mexico  and  Utah,  Septem- 
ber 9,  1S50;  Washington,  March  2,  1853;  Dakota,  March 
2,  1861 ;  Arizona,  February  24,  1863 ;  Idaho,  March  3, 
1863;  Montana,  May  26,  1864;  Wyoming,  July  25,  1868; 
(Alaska,  July  27,  1868).'  The  population  of  the  United 
States,  according  to  the  census  of  1790,  w^as  3,929,827 
souls.  According  to  that  of  188U  it  was  50,155,783.'-' 
Alaska  and  the  Indian  Territory  are  not  included.     The 

'Organized  not  as  a  territory  but  as  a  collection  district.  The  ob- 
ject of  the  law,  according  to  its  title,  is  "to  extend  the  laws  of  the 
United  States  relating  to  customs,  commerce  and  navigation "  over 
Alaska.     Statutes  at  Large,  XV.,  240. 

2  Since,  in  the  part  of  this  work  devoted  to  the  constitutional  law 
of  the  single  states,  they  cannot  be  all  separately  treated,  it  seems 
proper  to  give  here  their  area  and  population  according  to  the  census 

of  1880: 

Area  in  Popula- 
Square  Miles,      tion. 

New  Hampshire 9,305  346,991 

Massachusetts 8,815  1,783,085 

Rhode  Island 1,250  276,531 

Connecticut 4,990  622,700 

New  York 49,170  5,082.871 

NewJersev 7,815  1,131,116 

Pennsylvania 45,215  4,282,891 

Delaware 2,050  146,608 

Maryland 12,210  934,943 

Virginia 42,450  1,512,565 

North  Carolina 52,250  1,399,750 

South  Carolina 80.570  905,577 

Georgia 59,475  1,542,180 

Kentucky 40,400  1,648,690 

Vermont 9,565  332,286 

Tennessee 42,050  1,542,859 

Ohio 41,060  3,198,162 

Louisiana 48,720  939,946 

Indiana 36.350  1,978,301 

Mississippi 46,810  1.131,597 

Illinois 56,650  3,077,871 

Alabama 52,250  1,262,505 

Maine 33,040  648,936 

Missouri 69,415  2,168,380 


GENESIS    OF   THE    FEDERAL   CONSTITUTION.  35 

view  almost  universally  accepted  by  the  founders  of  the 
republic,  that  the  federal  principle  could  last  only  as  long 
as  the  federal  state  did  not  grow  beyond  certain  bounds, 
has  therefore  been  overthrown  by  experience.  But  with- 
out doubt  this  is  mainly,  if  not  exclusively,  on  account  of 
the  many-sided  changes  which  the  life  of  civilized  people 
has  undergone,  through  the  development  in  modem 
times  of  means  of  communication.  No  one  now  doubts 
that  the  Union  to-day  is  far  stronger  than  if  it  counted  | 
only  thirteen  states,  and  that  it  grows  stronger  with  each  I 
passing  year. 

Area  in  Popula- 
Square  Miles,     tion. 

Arkansas 53,850  802,525 

Michigan 58,915  1,636.937 

Florida 58,680  269,493 

Iowa 56,025  1,624,615 

Texas 265,780  1,591,749 

Wisconsin 56,040  1,315,497 

California 158,360  864,694 

Minnesota 83,365  780,773 

Oregon 96,030  174,768 

Kansas 82,080  996,096 

West  Virginia 24,780  618,457 

Nevada 110,700  62,266 

Nebraska 76,855  452,402 

Colorado 103,925  194,327 

Territories. 

New  Mexico 122,580  10,844 

Utah 84,970  143,963 

Washington 69,180  75,116 

Dakota 149,100  135,177 

Arizona 113,020  5,280 

Idaho 84,800  32,610 

Montana 146,080  39,159 

Wyoming 64,690  20,789 

According  to  race,  the  population  is  divided  into  43,402,970  whites, 
6,580,793  negroes,  105,607  Chinese,  and  66,407  Indians,  exclusive  of 
the  wild  tribes,  and  of  the  Indian  population  in  the  Indian  Territory 
and  in  Alaska.  About  one-eighth  of  the  population  (6,679,973)  are  of 
foreign  birth. 


PART   SECOND. 

THE  FEDEKAL  COXSTITUTIOK 

Authorities.  U.  S.  Supreme  Court  Reports  (Dallas,  4  vols,  to 
1804;  Cranch.  8  vols,  to  1815;  Wheaton,  13  vols,  to  1827;  Peters,  10 
vols,  to  1842;  Howard,  24  vols,  to  1800;  Black,  2  vols,  to  1802;  Wal- 
lace, 22  vols,  to  1874:  Otto,  17  vols,  to  1882;  since  then,  Davis.  Otto's 
reports  are  usually  cited  in  American  books,  not  by  his  name,  but  as 
"U.  S.  Reports," — the  general  name  for  the  series  of  supreme  court 
decisions.  I  shall  follow  this  example.  In  my  Constitutional  His- 
tory of  the  United  States  I  have  hitherto  taken  my  references  from 
Curtis's  edition  of  the  supreme  court  reports,  so  far  as  that  goes.  In 
1882  the  Lawyers  Co-operative  Publishing  Company  (Rochester,  N. 
Y.)  began,  under  the  editorship  of  Stephen  R.  Williams,  an  edition 
which  is  more  complete,  more  convenient,  and  in  many  respects  more 
valuable.  Up  to  April,  1885,  22  volumes  appeared,  coming  down  to 
the  October  terra,  1884).  U.  S.  Statutes  at  Large.  (The  student 
cannot  dispense  with  them,  although  the  Revised  Statutes,  1875 ;  2d 
edition,  1878;  Supplement,  1874-81,  are  more  convenient,  lighten 
the  task  of  research  bj"  their  topical  arrangement,  and  derive  an 
especial  value  from  their  references  to  the  decisions  of  the  supreme 
court.  They  contain  onl}-  the  laws  at  present  in  force.)  U.  S.  Digest, 
B.  V.  Abbott,  15  vols.,  Boston,  1874-78;  New  Series,  9  vols.,  1870-78; 
10  vols,  by  J.  E.  Hudson  and  G.  F.  Williams,  continuation  by  Will- 
iams alone.  A.  C.  Freeman,  Digest  of  American  Decisions,  vol.  I, 
San  Francisco,  1882.  Opinicns  of  tJie  Attorneys-General.  The  steno- 
graphic reports  of  the  proceedings  in  congi-ess,  which  have  appeared 
under  different  titles.  The  Debates  and  Proceedings  in  the  Congress 
of  the  United  States  come  down  to  the  conclusion  of  the  first  session 
of  the  twenty-fifth  congi-ess  (October  0,  1837),  28  vols.,  Wash.,  1825- 
1837.  The  Congressional  Globe  begins  in  183-3  and  extends  to  1873. 
The  Congressional  Record  covers  the  time  since.  Some  of  the  offi- 
cial publications  of  the  government,  usually  referred  to  as  a  whole 
as  Congressional  Documents,  are  an  important  source  of  information. 
Among  these,  the  Reports  of  Conim  ittees  are  of  especial  value,  and 
that,  too,  for  constitutional  history.  Since  both  the  inferior  federal 
courts  and  tlie  state  courts  have  to  pa,ss  upon  the  constitutionality  of 
federal  and  state  laws,  and  all  the  disputed  questions  of  constitu- 


THE    FEDERAL   CONSTITUTION.  37 

tional  law  cannot  possibly  be  brought  before  the  supreme  court  for 
adjudication,  the  decisions  of  these  other  courts  often  carry  great 
weight.  But  the  enormous  number  of  these  decisions  makes  an  ex- 
haustive review  of  them  more  and  more  of  an  impossibility,  even  to 
the  most  learned  American  jurists. 

J.  Wilson,  Works,  3  vols.,  Phila,,  1804.  J.  Taylor,  Construction 
Construed  and  Constitutions  Vindicated,  1830.  Ibid.,  New  Views  of 
the  Constitution  of  the  United  States,  1823.  R.  Mohl,  Das  Bundes- 
staatsrecht  der  Vereinigten  Staaten  von  Nord-Amerika,  Stuttg.  and 
Tilb.,  1824.  J.  Kent,  Commentaries  on  American  Law,  1st  ed.,  1826; 
12th  ed.,  1873;  4  vols.  Rawle,  A  View  of  the  Constitution  of  the 
United  States  of  America,  2d  ed.,  Phila.,  1829.  Th.  Sergeant,  Con- 
stitutional Law,  being  a  Review  of  tJie  Practice  and  Jurisdiction  of 
the  Courts  of  the  United  States  and  of  Constitutional  Points  De- 
cided, 2d  ed.,  Phila.,  1830.  J.  Story,  Commentaries  on  the  Constitu- 
tion of  the  United  States,  2  vols.,  1st  ed.,  1833;  4th  ed.,  1873.  A.  P. 
Upshur,  The  Federal  Oovemment,  its  true  Nature  and  Character, 
being  a  Review  of  Judge  Story's  Commentaries  on  the  Constitution 
of  the  United  States,  Petersburg,  1840.  A.  de  Tocqueville,  De  la 
Democratic  aux  Etats-Unis,  2  vols.,  Paris,  1835. 

FUNDAMENTAL  PRINCIPLES  OF  THE  CONSTITUTION  AND 
OF  CONSTITUTIONAL  LAW. 

§  Y.  The  So-called  Pkeamble.  At  the  beginning  of 
the  constitution  is  the  following  sentence:  "We,  the 
people  of  the  United  States,  in  order  to  form  a  more  per- 
fect union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defense,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  constitu- 
tion for  the  United  States  of  America."  This  sentence  is 
ordinarily  called  the  Preamble,  a  title  which  Farrar 
(pp.  85-89)  rejects,  because  it  must  lead  to  entirely  erro- 
neous conclusions  about  its  legal  nature  and  scope.  Far- 
rar is  right,  because  this  is  a  technical  expression,  taken 
from  English  law;^  and  this  expression  does  not  cover 

1  Sedgwick,  pp.  42-45. 


38  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

the  essential  part  of  this  introductory  sentence  of  the 
constitution.  It  not  only  speaks,  like  a  preamble,  of  the 
motives  and  aims  of  the  law-giver,  but  it  names  the  au- 
thority which  here  expresses  its  will;  and  it  declares 
what  this  expression  of  will  is,  and  upon  whom  it  is  to  be 
binding.  It  is  evident  that  this  is  not  simply  an  outward 
and  purely  formal  difference,  but  one  of  great  material 
significance.  This  aj^pears  from  a  comparison  of  the 
introductory  sentences  of  the  articles  of  confederation 
with  this:  from  tlie  numei'ous  changes  which  it  had  to 
undergo  before  it  received  its  final  form  in  the  Philadel- 
phia convention ;  ^  and  from  the  long  and  earnest  debates 
which  it  caused  in  some  of  the  ratification  conventions. 
It  was  almost  universally  recognized  that  the  enumera- 
tion of  certain  objects  did  not  make  this  clause  an  inde- 
pendent source  of  power  to  the  federal  authorities. 
]S^evertheless,  it  did  not  by  any  means  follow  that  no 
weight  at  all  was  to  be  given  it  because  no  legal  conse- 
quences could  be  deduced  from  it.  It  had  not  ''  simply 
an  historical  significance,"  and  the  constitution  did  not 
''  first  begin  with  that  which  followed  the  preamble,"  -  but 
it  is,  in  the  proper  sense  of  the  word,  a  most  essential  part 
of  the  constitution  itself,  for  it  is  to  it  what  the  enacting 
clause  is  to  an  ordinary  law.  The  discussion  of  the  aims 
enumerated  in  it,  to  which  the  American  commentators 
for  the  most  part  devote  much  space,  is  unnecessary  m  a 
statement  of  existing  constitutional  law,  because  it  is  of  a 
political  rather  than  a  legal  nature.  But  the  other  parts 
of  the  preamble  demand  careful  attention  and  Avould  de- 
serve it  even  if  no  independent  legal  significance  were  to 
be  given  to  them,  because  they  provide  the  natural  start- 


1  Collected  by  Farrar,  pp.  33-38. 

2Clr.V.lipf    n    71 


2  Schlief ,  p.  71 


THE   FEDERAL   CONSTITUTION.  39 

ing  point  for  a  discussion  of  the  principles  which  to  a  cer- 
tain extent  form  the  foundation  of  the  whole  constitution, 
as  well  as  of  the  rules  which  control  its  interpretation  and 
construction.  The  "  people  of  the  United  States  "  name 
themselves  as  the  framers  of  the  constitution,  that  is,  as 
the  possessors  of  political  omnipotence,  of  sovereignty. 
But  who,  then,  are  the  people  of  the  United  States  ?  This 
question  was  the  formal  beginning  of  the  struggle  between 
two  political  schools  which  culminated  in  the  civil  war, 
and  is  still  carried  on  to-day  with  tongue  and  pen,  though 
in  a  far  milder  way. 

§  8.  The  Doctrine  of  State  Sovereignty.  The 
premise  of  the  argument  of  the  so  called  state's-rights 
school  is  that  there  never  has  been,  either  in  point  of  fact 
or  in  point  of  law,  one  people  of  the  United  States.  The 
argument  proceeds  as  follows.  The  people  of  each  state, 
without  being  bound  in  any  way  by  the  action  or  the 
non-action  of  the  other  states,  decided  for  themselves, 
through  their  authorized  representatives,  whether  or  not 
they  would  accept  the  draft  of  the  Philadelphia  conven- 
>  tion.  That  the  constitution  is  a  work  of  states  is  there- 
fore a  fact  which  cannot  be  gotten  rid  of  on  the  plea  that 
the  constitution  begins  with  the  words :  "  We,  the  people 
of  the  United  States."  If  these  words  do  not  contain  an 
evident  falsehood,  then  must  the  phrase  "  United  States  " 
be  read  here  as  •'  states  united ; "  but  so  read  they  say 
simply  that  the  states,  in  order  to  better  protect  their 
interests,  have  entered  into  a  new  compact  to  regulate 
everything  in  regard  to  those  matters  as  to  which  they 
wish  to  form  one  commonwealth.  The  political  existence 
of  the  Union  was  not  changed.  The  states  were  sovereign 
afterwards  as  well  as  before,  and  they  alone  were  sover- 
eign because  a  partition  of  sovereignty  is  impossible  from 
its  very  meaning.    It  would  be  to  turn  nature  upside 


40  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

down  if  the  creator  were  made  subordinate  to  the 
creature.  Tliere  was  no  common  judge  standing  above 
the  federal  powers  and  the  states.  If  a  conflict  of  author- 
ity broke  out  between  them,  the  decisive  judgment  was 
left  to  the  states,  that  is,  to  each  of  them  for  itself,  as  to 
what  rights  they  had  reserved  for  themselves  and  what 
powers  they  had  given  to  the  Union.  If  the  federal 
government,  in  the  opinion  of  a  single  state,  exceeded  its 
constitutional  authority,  that  state  was  justified  in  declar- 
ing the  particular  law,  so  far  as  it  came  in  question,  to  be 
null  and  void.  John  C.  Calhoun,'  of  South  Carolina, 
who  with  great  logical  acuteness  developed  into  a  com- 
plete system  this  so-called  doctrine  of  nullification,  de- 
clared that  nullification  was  an  "eminently  conservative 
remedy,''  and  affirmed  that  it,  and  it  alone,  could  prevent 
the  dissolution  of  the  Union.^  The  younger  school  of  the 
southern  state's-rights  men  did  not  stand  by  him  in  this. 
The  doctrine  of  nullification  was  constantly  pushed  into 
the  background  and  often  completely  rejected,  and  on  the 

1  See  ray  book  about  him  in  the  series  of  biographies  edited  by 
John  T.  Morse,  under  the  general  name  of  "American  Statesmen." 

2  The  doctrine  in  its  beginnings  goes  back  to  the  last  years  of  the 
eighteenth  century.  The  hated  alien  and  sedition  laws,  whose 
unconstitutionality  will  scarcely  be  questioned  b\-  anyone  to-day, 
gave  the  legislatures  of  Virginia  and  Kentucky  the  opportunity  to 
proclaim  the  doctrine  officially.  When  tlie  anti-federalists  in  1801 
obtained  the  mastery,  and  the  policy  of  the  United  States  in  the 
struggle  with  England  seriously  embarrassed  the  industrial  interests, 
especially  those  of  the  New  England  states,  the  pailies  changed  their 
standpoints.  The  federalists  were  now  champions  of  state's  rights. 
During  the  war  with  England  they  inserted  in  their  political  mani- 
festoes the  leading  clauses  of  the  Virginia  and  Kentucky  resolutions, 
word  for  word.  But  it  was  under  the  pressure  of  the  special  inter- 
ests of  the  slave-holders  that  the  doctrine  of  state  sovereignty  was 
first  fully  framed,  thought  out  to  a  logical  end,  and  finally,  with  the 
most  terrible  zeal,  transferred  frona  theory  to  practice. 


THE    FEDERAL   CONSTITUTION.  41 

other  hand,  again  and  again  and  more  unconditionally 
the  last  consequences  were  deduced  from  the  premises  of 
the  state's-rights  school.  Since  the  constitution  is  a  com- 
pact between  sovereign  states,  they  said,  the  states  have 
the  power  to  cut  loose  from  the  Union  if  the  compact  is 
broken,  either  by  the  national  government  or  by  the 
other  states, —  if  it  changes  from  a  means  of  protection 
and  of  advancement  into  a  source  of  destruction  and 
certain  ruin.  Sovereignty  is  not  only  indivisible,  but 
cannot  be  parted  with,  and  the  states,  bound  only  through 
an  act  of  their  own  free  will,  can  be  bound  only  as  long 
as  their  will  does  not  change ;  that  is,  as  they  wish  to  be 
bound.  Secession  is  thus  not  a  right  under  the  constitu- 
tion, that  is,  a  constitutional  right,  but  it  is  inherent  in 
the  nature  of  the  states,  and  therefore  could  not  possibly 
be  given  up  by  the  adoption  of  the  constitution.  The 
attempt  to  prevent  by  force  the  secession  of  a  state  is  not 
a  suppression  of  a  rebellion,  but  an  international  war. 
Others  did  not  go  as  far,  and  thought  they  had  found  a 
middle  course.  They  admitted  that  secession  was  a  revo- 
lutionary act,  but  affirmed  that  the  federal  government 
was  not  empowered  to  use  force  against  the  sovereign 
states.  This  was  the  non-coercion  theory.  They  claimed 
that  the  sovereign  states  had  the  right  of  neutrality;  that 
is,  that  although  they  had  not  cut  loose  from  the  Union, 
they  were  justified  in  standing  on  one  side  as  spectators 
durino;  a  conflict  fouifht  out  with  the  sword  between  the 
federal  government  and  the  seceded  states. 

The  result  of  the  civil  war  made  this  one  Df  the  dead 
and  gone  doctrines  of  history.  After  its  champions  had 
appealed  to  the  ultima  ratio  and  had  been  completely 
conquered,  it  had  no  more  political  vitality.  And  it  will 
never  again  have  it.  The  victorious  north  did  not  even 
consider  it  necessary  to  guard  itself  against  the  possibil- 


42  CONSTITL'TIONAL    LAW    OF    THE    UNITED    STATES. 

ity  of  the  revival  of  this  doctrine  by  inserting  in  the 
constitution  a  new  express  declaration  against  it.  The 
opposite  doctrine  is  thus  unquestionably  valid  constitu- 
tional law  to-day,  whatever  one  may  think  on  the  ques- 
tion as  to  what  orujimdly  was  constitutional  law.  There 
is  no  need  here  of  any  further  critical  examination  of  the 
doctrine  of  state  sovereignty.  This  is  involved  in  the 
statement  of  the  opposite  doctrine,  which  is  the  constitu- 
tional law  of  to-day. 

§  9.  The  People  of  the  United  States  of  course  did 
not  act  as  one  uniform  whole  when  they  gave  themselv^es 
this  constitution.  The  people,  that  is,  the  part  of  the 
population  of  each  state  endowed  with  full  political 
rights,  acted  for  themselves,  and  had  absolute  freedom  of 
decision.  They  could  accept  the  draft  of  the  Philadel- 
phia convention  through  their  authorized  representatives, 
or  they  could  reject  it,  and  therewith  cut  loose  from  the 
Union,  if  the  projected  organization  of  the  latter  were 
accomplished.  But  their  ratification  did  not  make  the 
draft  a  constitution.  Their  ratification  was  simply  a 
declaration,  binding  in  law,  that  if  the  people  of  at  least 
eight  other  states  came  to  the  same  conclusioii,  the  organ- 
ization of  the  Union  should  therewith  become  an  accom- 
plished fact;  so  that,  for  the  states  concerned,  this  draft 
should  be  good  as  a  constitution  given  by  the  people  of 
the  United  States  to  the  United  States.  Only  hy  and 
through  the  choice  of  its  own  people  did  each  state  be- 
come a  constituent  member  of  the  Union.  This,  how- 
ever, did  not  happen  through  an  act  of  will  of  any  single 
state,  but  the  Philadelphia  draft  first  became  a  constitu- 
tion by  the  equal  and  co-operating  consent  of  the  people 
of  nine  states,  and  the  states  which  ratified  it  afterwards 
evidently  acquired  by  their  ratification  exactly  the  same 
legal  status  in  the  Union.     Chief -justice    Chase  was  un- 


THE    FEDERAL    CONSTITUTION.  4:3 

questionably  right  when  he  said  that  "  the  Union  of  the 
states  never  was  a  purely  artificial  and  arbitrary  relation." ' 
This  fact,  however,  did  not  settle  the  matter  at  issue. 
"Whether  the  states  were  or  were  not  sovereign  from  the 
time  of  the  declaration  of  independence,  by  common 
consent  every  one  of  them  decided  as  a  sovereign  upon 
the  adoption  of  the  constitution,  that  is,  upon  its  own 
entrance  into  the  Union.  On  the  other  hand,  whatever 
their  legal  status  in  the  confederation  and  their  political 
nature  up  to  this  time  might  have  been,  they  were  not 
sovereign  by  common  consent,  that  is,  according  to  the 
constitution,  as  members  of  the  new  Union.  The  Phila- 
delphia convention  began  its  labor  by  the  adoption  of  a 
resolution  which  declared  "  that  a  national  government 
ought  to  be  established,  consisting  of  a  supreine  legisla- 
tive, executive  and  judiciary."  If  a  state  adopted  the 
draft,  its  people  thereby  declared  that  they,  as  far  and  as 
widely  as  this  draft  provided,  should  be  fused  with  the 
people  of  the  other  states  into  one  people  of  the  United 
States;  and  by  the  concurrent  decision  of  all,  this  decla- 
ration, put  in  this  way,  was  placed  at  the  beginning  of 
the  constitution,  so  that  this  proclaimed  itself  as  the 
work  of  this  one  people  of  the  United  States. 

§  10.  The  Constitution  is  not  a  compact  between  the 
states,  but  it  is,  as  it  declares  itself  to  be,  a  constitution, 
and  in  truth,  the  constitution  of  the  United  States,  that 
is,  of  the  Union,  of  the  commonwealth  formed  out  of  the 
states.  Therefore,  it  is  unconditionally  binding,  as  well 
for  the  whole  people  as  for  the  states  as  such.  No  room 
for  doubt  is  left,  for  the  second  section  of  the  sixth  ar- 
ticle reads :  "  This  constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and  all 

1  Texas  vs.  White,  Wallace,  VII.,  724. 


44  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

treaties  made  or  which  shall  be  made  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the 
land,  and  the  judges  in  every  state  shall  be  bound  thereby, 
auA^thing-  in  the  constitution  or  laws  of  any  state  to  the 
contrary  notwithstanding."  The  constitution  is  thus  the 
law,  and,  moreover,  the  supreme  law  of  the  land.  The 
constitutions  of  the  separate  states  are  their  fundamental 
la\vs  only  in  regard  to  those  matters  which  are  not  sub- 
mitted by  the  federal  constitution  to  federal  authority. 
This  provision  makes  the  constitution  an  integral  part  of 
the  constitution  of  each  state.^  If  there  is  a  conflict  be- 
tween them,  then  the  provision  of  the  state  constitution 
opposed  to  the  federal  constitution  is  ipso  facto  null  and 
void.  All  judges,  and  therefore,  evidently,  all  other  state 
officers,  and  all  citizens  of  the  state,  are  absolutely  bound 
down  to  this  fundamental  principle.  He  who  seeks  to 
overthrow  it  lays  hands  on  the  fundamental  law  of  the 
land.  The  federal  government,  which  is  bound  to  give 
the  constitution  life  and  being  by  law,  is  therefore  not 
only  empowered  but  directed  to  break  down  any  opposi- 
tion ; —  if  possible,  by  the  ordinary  and  peaceful  powers  of 
the  state  as  provided  by  the  constitution,  but  in  case  of 
need,  by  force. 

§  11.  The  Right  and  the  Duty  of  Using  Force  follow 
directly  from  the  ideas  of  "law"  and  "government." 
They  are,  moreover,  set  forth  in  the  constitution  in  a  way 
quite  beyond  doubt.  The  third  section  of  the  second 
article  provides  that  the  president "  shall  take  care  that  the 
laws  be  faithfully  executed."  The  constitution  is  the  su- 
preme law  of  the  land,  and  the  president's  highest  duty 
is  therefore  to  take  care  that  it  shall  be  executed  every- 
where and  under  all  circumstances.     It  provides  in  the 

1  Taijlor  vs.  Taintor,  Wallace,  XVI.,  366. 


THE   FEDERAL   CONSTITUTION.  45 

seventh  paragraph  of  the  first  section  of  the  second  arti- 
cle that  he  shall,  upon  entering  office,  take  the  following 
oath:  "I  do  solemnly  swear  (or  affirm)  that  I  will  faith- 
fully execute  the  office  of  president  of  the  United  States, 
and  will,  to  the  best  of  my  ability,  preserve,  protect  and 
defend  the  constitution  of  the  United  States."  If  the 
constitution  laid  upon  him  this  duty,  it  must  also  have  in- 
tended that  he  should  have,  or  should  be  able  to  obtain, 
the  means  by  which  to  fulfill  the  duty  in  all  cases. 
Whether  and  how  far  it  is  his  privilege  to  decide  for  him- 
self whether  the  application  of  force  is  necessary  in  a 
given  case,  and  actually  to  use  force,  need  not  be  discussed 
at  this  point,  where  only  questions  of  general  principles 
are  at  issue.  Here  it  is  sufficient  to  show  that  if,  and  so 
far  as,  he  is  not  authorized  to  do  this,  the  law-makirig 
power  is.  Article  I.,  section  8,  paragraph  18,  says  that 
congress  shall  have  power  "  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers  and  all  other  powers  vested  by  this  con- 
stitution in  the  government  of  the  United  States,  or  in 
any  department  or  officer  thereof."  It  is  the  president's 
duty,  and  therefore  also  within  his  power,  to  preserve, 
protect  and  defend  the  constitution,  and  congress  is 
therefore  bound  to  give  him  the  means  to  use  this  power, 
that  is,  to  come  up  to  this  duty.  In  case  that  not  only 
individuals  but  states  as  such  should  rebel  against  the 
laws  or  the  constitution,  the  right  of  the  federal  govern- 
ment to  use  force  can  be  in  no  way  questioned ;  and  if 
other  means  are  not  sufficient,  it  is  so  much  the  more 
bound  to  use  force  because  the  political  order  or  the  very 
existence  of  the  Union  is  endangered  in  so  much  higher  a 
degree.  If  the  federal  government  seeks  by  force  to  com- 
mand obedience  to  the  laws  and  the  constitution,  and  the 
opposition  becomes  in  substance  and  form  a  war,  this  war 


•46  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

may  be  conducted  for  the  sake  of  humanity  and  policy  as 
a  war  with  a  foreign  power  under  all  the  rules  of  inter- 
national law,  but  legally  the  government  has  to  do  only 
with  a  rebellion.^ 

§  12.  The  Secession  of  a  State  is  simply  a  fact,  not  a 
legal  proceeding.  As  long  as  the  people  of  the  United 
States,  whose  work  the  constitution  is,  did  not  themselves 
decide  to  destroy  this  work,  that  is,  the  Union, —  in  other 
words,  as  long  as  they  wished  to  continue  to  be  one  peo- 
ple,—  the  constitution  of  the  Union,  despite  any  fact 
whatever,  remained  from  the  standpoint  of  law  wholly 
unchanged.-  On  questions  of  this  sort,  single  states  have 
as  little  right  of  action  as  single  individuals.  An  ordi- 
nance of  secession  is  wholly  null  and  void.  Despite  it,  the 
state  remains  a  member  of  the  Union  and  its  citizens  re- 
main citizens  of  the  Union.     Its  and  their  duties  under 

1  In  the  Prize  Cases  (Black,  II.,  635),  the  supreme  court  says  that 
the  rebels  were  at  the  same  time  a  war-making  power  and  traitors, 
and  were  therefore  subject  to  the  consequences  to  be  deduced  from 
either  the  one  or  the  other  character.  The  United  States,  on  the  other 
hand,  bore  the  double  character  of  a  war-making  power  and  of  the 
sovereign,  and  had  therefore  the  rights  of  both. 

It  seems  to  me  strange  to  refer  the  right  to  suppress  a  rebellion  to 
the  right  to  declare  war,  as  the  supreme  court  does  in  Texas  vs.  WJiite 
(Wallace,  VIT.,  700).  The  Philadelphia  convention  certainly  had  no 
thought  of  civil  war  when  it  gave  this  right  to  congress,  I  think, 
therefore,  that  it  is  at  least  an  unfortunate  formulization  of  the  idea 
I  have  already  recognized  as  just,  when  the  supreme  court  declares 
in  the  Prize  Cases  just  quoted  that  congress  alone  has  the  right  to 
declare  war.  In  the  case  of  a  civil  war,  according  to  my  judgment, 
formed  from  the  standpoint  of  constitutional  law,  the  lawful  govern- 
ment has  nothing  whatever  to  do  with  declaring  war.  A  war  is  a  fact 
which  has  simply  to  be  recognized.  If  congress  merely  recognizes 
the  fact,  the  views  expressed  in  the  text  and  by  the  supreme  court 
come  into  harmony. 

•2  These  fundamental  principles  are  clearly  and  sharply  formulated 
in  Cohens  vs.  Virginia,  Wheaton,  VI.,  264. 


THE   FEDERAL   CONSTITUTION.  47 

the  constitution  continue  wholly  unaltered.'  No  new  act 
of  admission  is  necessary,  therefore,  in  order  to  allow  a 
state  which  has  been  in  rebellion  to  enter  again  into  the 
full  enjoyment  of  its  constitutional  rights.  It  is  again  an 
equal  member  of  the  Union  when  it  has  been  recognized 
as  such  by  the  political  powers  of  the  Union,  and  its 
representatives  and  senators  have  been  admitted  by  con- 
gress.'^ 

§  13.  Reconstruction.  It  was  thus  not  a  legal,  but  a 
political  question,  how  the  so-called  reconstruction  was  to 
be  accomplished.  The  courts  had  to  decide,  upon  a  given 
case,  what  the  political  powers  of  the  federal  government 
had  determined  in  regard  to  that  case,  and  had  to  base 
their  judgment  upon  this  determination;  but  it  did  not 
appertain  to  them  to  decide,  in  addition  to  this,  what 
these  political  powers  ought  to  have  decided. 

These  remarks  have  by  no  means  exhausted  the  conse- 
quences which  are  to  be  deduced  from  the  opening  sen- 
tence of  the  constitution.  It  is  only  when  this  sentence 
is  analyzed  from  exactly  the  opposite  standpoint  that  its 
full  influence  upon  the  political  nature  of  the  Union  is 
first  recognized. 

§  14.  The  United  States.  The  people  of  the  United 
States  name  themselves  as  the  possessors  of  sovereignty, 
and  act  throughout  as  such;  so  that  they  give  to  the 
United  States  the  constitution.  The  people  of  the  United 
States,  however,  is  not  exactly  the  same  thing  as  the 
population  of  the  North  American  republic.  As  the 
Union  has  never  been  a  purely  arbitrary  and  theoretical 
creation,  so  also  the  name  United  States  is  no  arbitrary 
and  casual  phrase,  but  is  due  to  the  political  facts  of  the 

1  White  V8.  Cannon,  Wallace,  VI.,  443;  White  vs.  Hart,  Ibid.,  XIII., 
646. 

2  Texas  vs.  WTwYe,  Wallace,  VII.,  700. 


48  COXSTITUTIOXAL    LAW    OF   THE    EXITED    STATES. 

Union.  The  United  Stcates  is  not  onh'  the  name  of  a 
thing,  but  the  thing  itself.  As  the  population  of  the 
Union,  in  giving  itself  a  constitution,  acted  not  as  one 
simple  whole  but  in  and  through  its  organization  into 
states,  an  organization  historic  and  existing  by  law,  so  it 
did  not  by  the  constitution  organize  or  wish  to  organize 
a  close  national  state.  It  changed  the  federation  of 
states,  a  federation  with  the  loosest  powers,  into  a  federal 
state,  upon  a  deep-laid,  national  foundation.  Out  of  the 
federation  there  came  an  actual  Union,  but  the  Union 
was  not  divided  into  provinces,  which  were  still  called 
states.  Its  constituent  members  were  actually  states  and 
must  always  remain  states.  It  was  a  mistaken  use  of  the 
word  "  sovereitm  '*  (because  it  led  to  conclusions  false 
from  the  standpoint  of  fact),  if  afterwards,  as  before, 
even  in  official  utterances,  men  spoke  of  ''sovereign" 
states;  but  the  states  had  their  own  sphere  of  authority, 
and  within  this  they  were  completely  independent  of  the 
national  government.  The  expression  "  people  of  the 
United  States,'"  it  has  been  well  said,  does  not  on  account 
of  this  become  a  shadow,  without  legal  existence  or  in- 
com])rehensible.  The  possibility  of  misusing  the  word 
"people"  in  a  demagogic  way  always  remains,  and  this 
]iossibility  will  always  be  made  use  of  from  time  to  time; 
but  if  one  has  an  honest  wish  to  receive  and  understand 
the  word  in  its  constitutional  sense,  then  there  is  less 
room  for  doubts  than  there  would  be  if  the  Union  were  a 
single  state.^     The  "  people  of  the  United  States  "  are  the 

'  Schlief  (p.  10)  affirms  that  even  the  mob  can  identify  itself  with 
this  "  we,  the  people  of  the  United  States."  This  is  not  to  be  ques- 
tioned, but  the  constitution  cannot  be  made  answerable  therefor. 
In  his  view  the  introductory  words  are  "  evidently  an  imitation  of 
the  introductory  formula  commonly  used  up  to  the  present  day  in 
the  constitutional  monarchies  of  Europe  in  passing  a  law :  '  We,  king 
by  the  gi-ace  of  God,'" — an  assertion  which  is  irreconcilable  with 


TUE   FEDERAL    CONSTITUTION,  49 

population  of  the  United  States,  in  the  organization 
given  them  by  the  constitution  and  precisely  fixed  by  it.' 
A  condition  precedent  of  this  organization  is  the  main- 
tenance of  their  division  into  self-governing  states.  The 
states  first  came  into  existence  with  the  Union  and  by 
means  of  it,  but  they  are  older  than  the  constitution,  and 
did  not  abandon  their  separate  political  existence  by  the 
adoption  of  the  constitution,  even  if  this  gave  them  an 
essentially  different  character.  If  the  states  had  no  ex- 
istence, from  the  standpoint  of  constitutional  law,  outside 
of  the  Union  and  independent  of  it,  yet,  on  the  other 
hand,  the  Union,  from  the  same  standpoint,  had  just  as 
little  an  existence  without  the  states.  The  supreme  court 
says  that "  the  constitution  in  all  its  provisions  looks  to  an 
indestructible  Union  composed  of  indestructible  states."  ^ 
The  same  authority  declares  in  Cohens  vs.  Virginia: 
"  America  has  chosen  to  be  in  many  respects  and  in  re- 
even  a  superficial  knowledge  of  the  history  of  the  development  of  the 
constitution.  A  constitution  cannot  be  "  critically  developed  from 
one  underlying  thought  *'  (p.  6)  if  it  is  to  be  anything  more  than  a 
worthless  product  of  a  doctrine  of  abstract  logic.  It  is  to  be  under- 
stood only  from  the  historic  standpoint.  Schlief ,  for  the  most  part, 
does  not  state,  as  he  promises  to  do,  what  "the  actual  constitutional 
law  of  the  Union  "  is.  Instead  of  this  he  states  what,  in  his  opinion, 
the  constitutional  law  should  be,  frequently  what  it  should  not  be, 
and  only  what  it  is  in  accordance  with  his  erroneous  view. 

1  Story  Ls  therefore  unquestionably  wrong  when  he  says  (I. ,  249) 
that  a  majority  of  the  whole  people  can  unquestionably  change  the 
constitution  at  will.  For  in  this  case  "people"  seems  to  be  used  as 
synonymous  with  ' '  population. "  Judge  Jameson  ( The  Constitutional 
Convention,  pp.  19,  20)  neatly  sums  up  the  whole  constitutional  doc- 
trine in  the  sentence:  " Sovereignty  resides  in  the  society  or  body 
politic ;  in  the  corporate  unit  resulting  from  the  organization  of  many 
into  one,  and  not  in  the  individuals  constituting  such  unit,  nor  in 
any  number  of  them,  except  as  organized  into  a  body  politic  and 
acting  as  such."    See  also  in  the  same  work  pp.  524-526. 

2  Texas  vs.  White. 

4 


50  COXSTITUTIO^'AL    LAW    OF   THE    UNITED    STATES. 

gard  to  many  purposes  a  nation,  and  for  all  these  pur- 
poses her  government  is  complete."  The  court  proceeds 
to  explain,  however,  that  America  wished  to  be  a  nation 
only  in  certain  respects  and  for  certain  aims,  and  in  re- 
gard to  all  others  the  federal  government  is  without  any 
authority  whatever;  it  is  as  little  sovereign  as  the  states. 
§  15.  Sovereignty,  which  in  fact  is  indivisible,  rests 
only  in  the  people  of  the  United  States.  The  people  have 
intrusted  the  federal  government  with  the  use  of  certain 
rights,  while  others,  according  to  their  will,  as  fixed  in 
the  constitution,  remain  in  the  states, —  others,  but  not  all 
others.  The  ninth  amendment  reads:  "The  enumera- 
tion in  the  constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the 
people."  This  article  is  in  direct  connection  with  the 
preceding  amendments  which,  as  has  been  said,  are  ordi- 
narily called  the  American  Bill  of  Eights.  Speaking 
generally,  it  rests  upon  the  fundamental  view  that  certain 
rights  (among  them  those  expressly  named)  belong  to  the 
people,  i.  e..  in  this  case  to  the  individual  citizens,  and  that 
these  rights  are  to  be  completely  withdrawn  from  the 
cognizance  of  the  political  powers.^     On  this  point  the 

1  While,  by  the  first  amendment,  certain  things  were  expressly  with- 
drawn from  the  legislative  authority  of  congress,  congress  is  not  named 
in  the  seven  following  amendments.  Yet  it  has  always  been  held 
by  the  courts  that  they  relate  only  to  the  federal  government  and  not 
to  the  state  governments.  But  if  the  states,  so  far  as  the  federal 
constitution  is  concerned,  are  in  law  perfectly  free  to  act  in  regard  to 
the  matters  to  which  the  first  eight  amendments  relate,  yet  the  rea- 
son for  these  amendments  was  as  a  matter  of  fact  the  unanimous 
conviction  of  the  population  of  all  the  states  that  these  barriers  must 
be  erected  against  every  government,  if  freedom  was  to  be  ensured. 
It  is  only  in  regard  to  some  of  the  least  important  provisions  that 
this  is  either  untrue  or  true  only  in  a  limited  degree.  Farrar 
(pp.  59,  60)  affirms  that  these  rights  are  '"held  by  every  member  of 
the  nation,  under  and  by  virtue  of  the  constitution  of  the  United 


THE    FEDERAL   CONSTITUTION.  51 

tenth  amendment  is  conclusive.  It  says:  "The  pow- 
ers not  delegated  to  the  United  States  by  the  constitu- 
tion, nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively  or  to  the  people."^  We  are 
considering  this  tenth  amendment  here  only  in  regard 
to  the  matter  immediately  before  us.  It  is  evident  that 
among  the  rights  which  are  neither  given  to  the  federal 
government  nor  reserved  to  the  separate  states  is  the 
weightiest  of  all;  yes,  the  one  which  embraces  all  others, 
i.  <?.,  the  right  to  change  the  constitution  and  to  parti- 
tion power  in  whatever  way  is  desired,  between  the  fed- 
eral government  and  the  states.^    The  sovereign  people 

States,  independent  of  any  other  earthly  power,  and,  of  course,  can- 
not be  destroyed  or  abridged  by  the  laws  of  any  particular  state 
There  are  numberless  judicial  decisions  against  this  view,  but,  never 
theless,  a  state  law  which  forbade  the  open  carrying  of  arms  has 
been  declared  unconstitutional. 

>  Cooley,  Principles,  29,  says  that  whatever  is  not  granted  to  the 
federal  government  belongs  to  the  states,  or  to  the  people  thereof. 
The  expression  ' '  people "  in  the  tenth  amendment  is  generally  un- 
derstood in  this  way.  In  maintenance  of  this  view,  it  is  ordinarily 
said  that  here  the  phrase  is  used  that  powers  are  "  reserved  to  "  the 
states  and  the  people,  while  the  ninth  amendment  speaks  of  powers 
"retained  by"  the  people.  I  do  not  overlook  the  weight  of  this 
reasoning,  but  yet  cannot  persuade  myself  that  here  only  the  people 
of  the  separate  states  are  meant.  According  to  the  context,  cer- 
tainly another  meaning  is  possible,  and  the  great  care  with  which 
the  constitution  has  been  drawn  throughout  suffices  to  show  that 
the  "thereof"  which  would  have  excluded  every  doubt  would  have 
been  added  if  only  the  people  of  the  separate  states  had  been 
spoken  of.  Be  this  as  it  may,  the  views  expressed  in  the  text  would 
not  be  influenced  thereby,  because  they  need  not  be  made  dependent 
upon  the  tenth  amendment.  Jameson  (p.  86)  is  of  the  opinion  that 
this  amendment  relates  "not  to  the  people  of  the  states  but  to  the 
people  of  the  Union." 

•^  As  long  as  the  political  nature  of  the  United  States  is  not  sub- 
jected to  a  change  which,  in  the  essential  sense  of  the  word,  is  mate- 
rial, this  can  happen  only  by  increasing,  diminishing,  or  in  some  way 


iyj  CONSTITUTIONAL    LAW    OV    THE    UMTLD    .STATES. 

thus  did  not,  in  adopting  the  constitution,  leave  the 
stage,  but  they  can  at  any  instant  use  again,  to  the 
fullest  extent,  their  sovereignty.  But  even  so,  only 
the  sovereign  people  of  the  United  States  can  do  this. 
The  population  of  the  Union  cannot.  The  least,  as 
well  as  the  most  incisive  and  comprehensive,  change 
can  lawfully  be  made  only  in  the  way  provided  in  the 
constitution,  because  the  sovereign  people  has  decided 
that  it  will  make  changes  of  the  constitution  only  in 
these  fixed  ways.  Naturally,  it  can  change  this  decision 
as  well  as  all  others  in  a  constitutional  way.'  In  the 
United  kStates,  therefore,  sovereignty  is  actually,  as  the 
idea  demands,  unlimited  and  undivided,  but  the  exercise 
of  the  rights  of  sovereignty  is  given  to  the  organs  of  the 
commonwealth  only  in  part. 

fashioning  diffei"ently  the  powers  of  the  federal  government.  The 
supreme  court  says,  in  Stuvgis  vh.  Crowninshield,  Wheaton,  IV.,  123, 
that  there  was  no  reason  for  setting  forth  in  tlie  constitution  the 
powders  which  remained  in  the  states,  and  it  would  have  been  im- 
proper to  do  so,  because  these  had  their  origin,  not  in  the  American 
people,  but  in  the  ijeople  of  the  separate  states,  and  were  no  further 
affected  by  the  adoption  of  the  constitution  than  was  involved  by  the 
provisions  of  the  constitution.  The  constitution  not  only  withdraws 
from  the  states  certain  rights  in  order  to  give  them  to  the  federal 
government,  but  it  also  forbids  them  to  do  certain  things  without 
authorizing  the  federal  government  to  do  them.  But  while  it  says 
what  the  federal  government  can  and  cannot  do,  it  can  only  say  what 
the  states  cannot  do ;  and  it  expressly  sets  forth  that  certain  rights 
are  reserved  to  them.  So  far  as  their  relations  to  the  Union  do  not 
come  into  question,  it  cannot,  however,  direct  them  to  do  anything 
whatever.  We  shall  discuss  later  whether  and  how  far  powers  were 
taken  from  the  states  in  order  to  give  them  to  the  federal  govern- 
ment. 

'  Only  on  one  point  can  it  be  doubtful  whether  a  constitutional 
change  can  be  made  without  the  consent  of  all  the  states.  Article 
v..  wliich  relates  to  the  amendment  of  the  constitution,  provides 
'•that  no  state,  without  its  consent,  shall  be  deprived  of  its  ecjual  suf- 
frage in  the  senate."     If  a  cliange  in  the  constitution  on  this  point 


the  federal  constitution.  53 

§  16.  The  Authority  of  the  Federal  Government 
AND  of  the  States.  The  authority  of  the  federal  govern- 
ment, as  well  as  of  the  states,  is  a  limited  one,  and  the 
boundar}'^  between  the  two  is  set  forth  in  the  constitu- 
tion. From  the  "  nature  of  the  state,''  from  the  "  reason 
of  the  state,"  from  "  public  opinion,"  from  political 
policy,  and  even  from  necessity,  the  federal  government 
can  deduce  no  powers  whatever.'  It  has  no  inherent 
rights  Avhatever.  All  its  powers  are  delegated,  and  it 
has  only  tJie  powers  which  are  given  it  by  the  constitu- 
tion. It  is  by  no  means  necessary,  however,  that  the  del- 
egation should  be  expressed  in  so  many  words.  The 
provision  of  the  articles  of  confederation  on  this  point 
contains  the  word  "expressly,"  and  when  the  tenth 
amendment  was  discussed  in  congress,  it  was  moved  to 
incorporate  this  word  in  the  constitution.  Madison  and 
others  opposed  it  on  the  ground  that  general  expressions 
must  be  used  in  the  constitution,  if  it  was  not  to  descend 
into  the  most  minute  particulars.  A  stiff  and  literal  in- 
terpretation of  these  clauses  is  not  to  be  given,  for  the 
constitution  was  framed,  not  for  the  moment,  and  not  in 
relation  to  one  fixed  state  of  facts,  but  with  the  idea  of  its 

should  be  determined  upon  by  a  constitutional  majority,  and  a  state 
which  did  not  consent  should  thereby  be  deprived  of  its  equal  repre- 
sentation in  the  senate,  the  danger  against  which  the  states  were  to 
be  absolutely  assured  would  be  brouglit  about  in  an  indirect  way. 

1  The  supreme  court  says  that  the  constitution  "  is  a  law  for  rulers 
and  people,  equally  in  war  and  in  peace,  and  covers  with  the  shield 
of  its  protection  all  classes  of  men,  at  all  times,  and  under  aU  cir- 
cumstances." The  doctrine  that  it  can  be  thrust  on  one  side  in  order 
to  meet  the  pressing  necessities  of  a  great  crisis  has  the  most  destruc- 
tive consequences.  It  "leads  directly  to  anarchy  or  despotism,  but 
the  theory  of  necessity  on  which  it  is  based  is  false ;  for  the  govern- 
ment, within  the  constitution,  has  all  the  powers  granted  to  it  which 
are  necessary  to  preserve  its  existence."  Ex  parte  Milligan,  Wallace, 
IV.,  120,  121.' 


54  CO^■ST1TUTIONAL    LAW    OP'    THE    TXITED    STATES. 

lasting  for  generations  and  meeting  the  demands  of  con- 
stauth'  changing  conditions  of  affairs.  Every  power,  there- 
fore, of  such  a  general  character  must  include  also  all  the 
powers  which  are  natui'ally  implied  in  it  and  are  required 
for  the  attainment  of  the  end  sought  by  it  (implied  pow 
ers).^  This  argument,  which  the  supreme  court  has  since 
formulated  most  precisely  in  Martin  vs.  Hunter  (Wheaton, 
I.,  30-i),  was  convincing,  and  the  proposal  was  not  adopted. 
If  it  had  been,  a  change  m  principle  would  have  been 
made  in  the  constitution  by  this  tenth  amendment.  The 
nation  would  have  gone  back  in  part  to  the  fundamental 
ideas  of  the  confederation, —  ideas  which  Avere  purposely 
and  decisively  opposed  by  the  constitution.  If  congress, 
in  the  paragraph  already  quoted,  was  authorized  to 
"  make  all  laws  which  shall  be  necessary  and  proper  "  to 
carry  out  any  of  the  powers  delegated  it  by  the  constitu- 
tion, yet  this  "  necessary  "  is  not  to  be  understood  in  the 
absolute  sense  of  the  word.  The  "  proper  "  qualifies  it. 
The  assertion  that  congress  can  use  only  the  means,  with- 
out which  it  would  be  absolutely  impossible  to  discharge 
the  task  imposed  upon  the  different  fedei'al  powers  by 
the  constitution,  imputes ,  an  absurdity  to  the  f ramers 
of  the  constitution.  If  the  end  is  constitutional,  congress 
has  free  choice  of  any  and  all  means  which  in  the  nature 
of  things  correspond  to  the  end  to  be  reached,  so  far  as 
their  use  is  not  forbidden  it  by  the  constitution.  Whether 
they  are  proper,  congress  alone  is  to  judge.  This  is  a 
question,  not  of  law,  but  of  politics.  The  powers  of  the 
federal  government  are  in  exact  relation  with  the  tasks 
imposed  upon  it.     Paragraph  18  of  the  eighth  section  of 

1  In  a  cei'tain  way,  therefore,  it  is  riglit  to  say  that  not  only  tlie 
powers  of  congi-ess,  but  much  more  the  matters  in  regard  to  wliich 
congress  is  empowered  to  act,  are  set  forth  in  the  constitution,  but,  in 
my  opinion,  Tiffany  (p.  179)  puts  this  txx)  baldly. 


THE   FEDERAL   CONSTITUTION.  55 

the  first  article  is  just  as  little  a  source  of  new  and  inde- 
pendent powers  for  congress  as  the  tenth  amendment  is 
a  limitation  of  the  sphere  of  autliority  provided  by  the 
constitution  for  the  national  government. 

§  17.  Interpeetation  and  Constrcction  of  the  Consti- 
tution. The  two  provisions  mentioned  simply  formulate 
and  make  precise  the  fundamental  principles  which  con- 
trol the  interpretation  and  construction  of  the  whole  con- 
stitution. We  must  apply  to  them,  as  well  as  to  the  rest  of 
the  constitution,  the  further  principle  that  words  are  to 
be  understood  in  their  natural  and  —  when  a  technical 
expression  of  different  meanings  is  used  —  in  their  ordi- 
nary sense.  No  violence  must  be  done  to  them.  Their 
scope  must  not  be  stretched  by  skillful  interpretation. 
They  must  not,  however,  be  too  literally  read.  Moreover, 
the  same  word  has  by  no  means  the  same  meaning  in 
every  part  of  the  constitution,  and  as  every  single  word 
must  be  interpreted  by  its  context,  so  must  every  single 
clause  be  read  and  interpreted  in  unison  with  all  the  other 
clauses.  The  constitution  is  a  whole.  It  is  not  to  be  made 
an  arena  for  juristic  hair-splitting.  In  every  doubtful 
case,  the  point  of  view  from  which  to  ascertain  the  true 
intent  of  the  framers  of  the  constitution  must  be  the 
general  end  which  the  provision  was  intended  to  serve. 
Judges  as  well  as  law-givers  must  recognize  the  absolute 
impossibility  of  any  conflict  between  the  different  provis- 
ions of  the  constitution.  Since  the  will  of  the  people  as 
expressed  in  the  constitution  is  unconditionally  supreme, 
the  fact  must  be  recognized  that  this  will  is  never  untrue 
to  itself,  and  is  always  entirely  conscious  of  itself.  But 
the  expression  of  this  will  cannot  always  be  put  with 
such  absolute  certainty  as  to  leave  no  room  for  honorable 
differences  of  opinion.  This  is  implied,  indeed,  in  that 
general  method  of  expression  in  the  constitution  which 


50  CONSTITUTIONAL    LAW    OF    THE    UNITI:D    STATES. 

Ave  have  recognized  as  a  necessity  lying  in  the  vciy  nature 
of  the  thing.  It  is  partly  due,  too,  to  the  fact  that  the 
constitution  was  not,  to  the  people  who  ga\'e  it,  an  end  in 
itself,  but  a  means  to  the  end,  and  this  end  seemed  to  de- 
mand that,  in  regard  to  certain  things,  tlie  establishment 
of  au  inviolable  principle  should  be  avoided. 

§  18.  The  Limits  of  Authority.  This  has  especial  ref- 
erence to  the  dividing  line  between  the  authority  of  the 
federal  powers  and  of  the  states.  The  all-])ervading 
fundamental  thought  of  the  constitution  is  tluit  certain 
interests  are  common  to  the  whole  people  of  the  Unior, 
and  that  therefore,  in  regard  to  these,  political  powers 
have  been  intrusted  to  a  central  government,  and  that 
other  interests  and  needs  must  be  left  to  the  care  of  the 
states,  because  they  vary  according  to  locality.  But  the 
people  have,  in  addition,  rights,  interests,  and  needs 
which  are  both  national  and  local  in  their  nature,  and,  in 
regard  to  these,  both  the  federal  and  state  governments 
must  have  duties  and  powers  corresponding  to  these  du- 
ties. It  by  no  means  follows  from  the  delegation  of  a 
power  to  the  federal  government  tliat  the  same  power 
does  not  belong  to  the  states.  In  every  single  case,  the 
question  must  be  put  whether  the  delegation  of  autliority 
to  the  one  involves  its  withdrawal  from  the  other.  If 
this  question  cannot  be  answered  affirmatively,  one  must 
further  inquire  what  relation  prevails  in  general  between 
the  concurrent  powers  of  the  national  government  and 
the  states.  When  the  constitution  expressly  Avithdraws 
something  from  the  states,  or  gives  it  exclusively  to  the 
national  government,  of  course  no  difficulty  can  arise. 
Even  when  neither  of  tliese  contingencies  happens,  the 
exclusive  power  of  the  national  government  must  be  rec- 
ognized, if  the  nature  of  things  forbids  the  subjection  of 
the  citizens  in  regard  to  the  question  at  issue  to  two  dif- 


THE    FEDERAL   CONSTITUTION.  57 

ferent  and  independent  legislative  wills.  Again,  some 
powers  are  delegated  to  the  federal  government  without 
any  obligation  to  use  them.  Thus  congress  has  a  right 
to  pass  a  general  bankrupt  law,  bat  it  need  not  do  so. 
It  has  repeatedly  done  so,  and  repeatedly  repealed  the 
law  at  short  intervals.  In  such  a  case,  there  is  nothing 
to  prevent  the  states  from  exercising  a  similar  power,  as 
long  as  the  federal  government  does  not  exercise  it,  but 
as  soon  as  the  latter  does  so,  the  state  laws  will  ipso  facto 
become  of  no  validity  unless  the  nature  of  the  matter 
permits  two  different  legislative  wills  to  act  upon  it  at 
the  same  time.  Here,  in  distinction  from  the  case  last 
mentioned,  the  exclusiveness  of  the  federal  authority  does 
not  depend  upon  the  nature  of  the  right  in  itself,  but  it 
comes  into  force  for  the  first  time  by  the  use  of  the  right. 
Finally,  it  often  happens,  as  for  example,  in  regard  to  the 
right  of  taxation,  that  it  is  either  convenient  or  even 
necessary  that  the  individual  should  be  subject  at  the 
same  time  to  different  legislative  wills.  But  the  fact  that 
this  may  happen  without  conflict  between  these  wills 
does  not  exclude  the  possibilit}''  of  conflict.  If  conflict 
comes,  the  state  laws  must  yield  to  the  national  laws,  but 
they  yield  to  them  only  so  far  as  they  are  irreconcilable 
with  them.  In  principle,  the  authority  of  the  states  suf- 
fers no  wrong,  but  they  cannot  exercise  it  in  a  particular 
way  because  the  national  government,  in  regard  to  the 
method  of  exercising  the  same  power,  has  so  far  the 
preference  that  the  accomplishment  of  its  will  cannot  be 
interfered  with,  and  of  course  not  actually  hindered.  If 
a  conflict  of  rights  cannot  happen,  yet,  from  the  mani- 
fold nature  of  these  legal  possibilities,  conflicts  over 
rights  may  easily  arise.  And  even  when  the  respective 
spheres  of  the  federal  and  of  the  state  governments  do 
not  intersect  each  other  in  this  way,  yet,  of  course,  a 


58  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATICS. 

question  may  arise  between  them  under  every  provision 
of  the  constitution,  as  to  whether  each  of  them  has 
acted  within  its  constitutional  powers.  Tlie  franiers  of 
the  constitution  coukl  not  have  overlooked  this,  and 
hence  it  is  a  'priori  evident  that  they  must  have  taken 
care  to  bring  about  a  legal  decision  of  all  such  questions. 
If  this  were  not  so,  the  corner-stone  of  their  whole  Ijuikl- 
ino-  would  have  been  wantino:.  But  if  this  is  so,  tlien  no 
ground  is  left  for  seeking  such  remedies  as  nullification, 
which  can  be  based  upon  not  a  single  word  in  the  consti- 
tution. It  is  not  by  the  spinning  of  a  web  of  logic  out 
of  unproved  and  unprovable  assertions  that  we  can  find 
what  the  constitutional  law  upon  this  point  must  be. 
The  constitution  shows  what  the  constitutional  law  is. 

§  19.  Conflicts  of  Authority.  If  the  rule  that  words 
are  to  be  understood  in  their  natural  sense  is  followed,  all 
difficulties  which  arise  from  the  doctrine  of  state  sov- 
ereignty in  regard  to  the  decision  of  unavoidable  con- 
flicts of  authority  disappear.  The  constitution  is  not  a 
compact  between  the  federal  government  and  the  states, 
and  inasmuch  as  they  do  not  stand  in  the  relation  of  par- 
ties to  each  other  or  of  parts  of  one  another,  there  is  no 
need  of  a  common  arbiter  superior  to  them  to  decide 
questions  between  them.  The  non-existence  of  such  an 
arbiter,  therefore,  does  not  imply  that  eitlier  of  the  al- 
leged parties  must  ultimately  decide  for  itself.  The  peo- 
ple of  tlie  United  States  and  the  population  of  the  states 
are  the  same  individuals.  Federal  government  and  state 
governments  are  their  creatures,  and  have  the  same  ob- 
ject —  the  welfare  of  the  people.  The  co-ordination  of  the 
federal  government  and  of  the  states,  so  far  as  the  affairs 
of  the  commonwealth  are  concerned,  is  an  absurdity  just 
as  it  is  an  absurdity  to  claim  that  the  federal  govern- 
ment, the  creature  of  the  constitution,  is  one  of  tiie  par- 


THE   FEDERAL   CONSTITUTION. 


59 


ties  to  the  constitutional  compact.  It  is  an  "  agent,"  as 
the  champions  of  the  doctrine  of  state  sovereignty,  in 
opposition  to  their  own  theory  of  "  parties,"  call  it,  but 
it  is  not,  as  they  affirm,  an  agent  of  the  states,  but  an 
agent  of  the  people  of  the  United  States,  and  their  ex- 
clusive agency  for  all  their  affairs  as  a  commonwealth. 
It  is  as  little  master  as  it  is  servant  of  the  states ;  but,  as 
the  general  delegate  of  the  master  of  the  common- 
wealth for  the  commonwealth,  it  alone  has  authority 
within  the  sphere  allotted  to  it.  The  Union  is  through 
the  constitution  a  legal  state.  If  the  constituent  mem- 
bers of  a  state  had  each  for  itself  the  power  of  ultimate 
decision  as  to  what  is  law,  this  would  be  a  negation  in 
principle  of  the  idea  of  a  legal  state.  The  commonwealth 
has  given  to  the  federal  government  its  own  sphere,  and, 
therefore,  the  parts  of  the  commonwealth  cannot  be 
judges  as  to  whether  it  has  overstepped  its  limits.^  The 
opinion  of  the  commonwealth  can  find  lawful  expression 
only  in  the  manner  provided  by  the  constitution,  i.  e., 
through  the  constitutional  organs  of  the  commonwealth 
in  the  discharge  of  their  constitutional  functions. 

On  the  other  hand,  it  has  been  claimed  that  the  fed- 
eral government  could  break  through  the  paper  barriers 
of  the  constitution  at  every  point  and  make  itself  abso- 
lute master,  if  it  alone  must  decide  upon  the  constitution- 
ality of  its  acts.  In  theory,  this  conclusion  cannot  be 
questioned,  but  in  practice  it  is,  in  substance,  an  utterly 
false  conclusion.  The  constitution  avoids  this  danger  in  a 
practical  way  by  the  organization  of  that  whole  apparatus 

'  Story,  I.,  p.  256,  in  his  discussion  of  this  question,  recalls  the  fact 
that  even  under  the  articles  of  confederation,  according  to  an  unani- 
mous vote  of  congress,  the  states  were  not  authorized  to  put  their 
own  construction  upon  treaties,  because  treaties  were  made  not  by 
them  but  by  congress. 


GO  CONSTITUTIONAL    LAW    OF    THE    UNITKD    STATES. 

of  government  which  the  Americans  ordinarily  call  "a 
system  of  checks  and  balances."  The  law-making  power 
of  congress  is  under  the  direct  control  of  the  conditional 
veto  right  of  the  president.  The  members  of  both 
houses  of  congress  are  directly  or  indirectly  elected  by 
the  people,  and  not  at  long  intervals.  The  people  are 
therefore  always  able  to  prevent  an  unconstitutional  mis- 
use of  the  law-making  power  by  intrusting  it  to  pei'sons 
who  will,  with  greater  faith,  fulfill  their  first  duty  of 
keeping  the  constitution  in  view,  in  their  law-making,  as 
the  supreme  and  absolutely  binding  law  of  tlie  land.  In- 
tentional and  preconcerted  usurpations  are  therefore  pos- 
sible only  with  the  actual  sanction  of  the  people  from 
the  very  beginning.  This,  however,  does  not  give  a  suf- 
ficient protection  against  systematic  oppression  of  minor- 
ities, and  still  less  does  it  ensure  to  individuals  that  their 
constitutional  rights  shall  not  be  interfered  with  and 
trenched  Uj)on  in  good  faith  through  unconstitutional 
laws  or  acts  of  the  federal  powers.  But  the  framers  of 
the  constitution  intended  to  transform  the  old  Union,  not 
only  into  a  state  capable  of  life,  but  into  such  a  state 
founded  upon  law,  and  they  therefore  could  not  forget 
to  endow  it  expressly  with  the  majesty  of  law,  and  that 
in  such  a  way  that  the  law  should  be  as  fully  protected 
under  all  circumstances  as  it  can  be  in  the  nature  of  man 
and  of  human  institutions. 

The  third  article  relates  to  the  "judicial  ])ower,"  i.  e., 
to  the  judicial  majesty  of  the  United  States,  creates  the 
supreme  court  of  the  United  States  as  the  highest  organ 
of  this  power,  authorizes  congress  to  create  other  federal 
courts,  and  declares  that  "the  judicial  power  shall  extend 
to  all  cases  in  law  and  equity  arising  under  this  constitu- 
tion, the  laws  of  the  United  States,  and  treaties  made,  or 
wliich  shall  be  made,  under  their  authority,"  that  is,  under 


THE    FEDERAL   CONSTITUTION.  61 

that  which  it  afterwards  designates  as  the  supreme  law 
of  the  land.  It  could  not  be  more  clearly  stated  that 
nowhere  and  nohow  outside  of  the  federal  government 
are  single  parts  of  the  commonwealth  and  of  the  whole 
people  to  decide  in  the  last  instance,  but  that  a  factor  of 
the  federal  government,  created  for  this  purpose,  is  to 
decide,  in  a  way  binding  upon  all,  what  the  law  is, 
according  to  the  constitution  and  the  federal  laws, 
provided  the  questions  in  dispute  eome  in  form  and 
substance  within  the  scope  of  this  provision.  There 
is  not  the  slightest  support  in  the  constitution  for 
the  assertion  of  the  state's-rights  school  that  this  can 
never  be  the  case  in  disputes  about  the  respective  author- 
ity of  the  federal  government  and  the  sovereign  states. 
This  assertion  rests  only  upon  a  general  abstract  argument 
from  the  alleged  nature  of  the  Union  as  a  league  of 
states.^  On  the  other  hand,  it  has  never  been  questioned 
that  this  clause  does  not  cover  all  the  disputed  questions 
of  constitutional  law,  and  that  even  questions  of  the 
relative  authority  of  the  federal  government  and  of  the 
states  cannot  always  be  brought  within  it.     In  the  first 

•  Even  Madison  could  bring  forward  no  other  argument  when  he, 
well-called  the  father  of  the  constitution,  was  driven  by  the  stream 
of  events  into  the  front  rank  of  the  state's-rights  school.  He  said, 
in  1800,  in  the  Virginia  report,  "  in  relation  to  the  rights  of  the  par- 
ties to  the  constitutional  compact,"  that  the  federal  courts  could  not 
possibly  decide  in  the  last  instance,  because,  "on  any  other  hypothesis, 
the  delegation  of  judicial  power  would  annul  the  authority  delega- 
ting it."  The  Federalist,  No.  39,  had  expressly  stated  that  the  su- 
preme court  "in  controversies  between  the  two  jurisdictions,"  that 
is,  of  the  states  and  of  the  Union,  "  is  ultimately  to  decide."  In 
1810,  Pennsylvania  proposed  to  create,  by  an  amendment  to  the  con- 
stitution, another  tribunal  for  the  decision  of  such  questions.  Nine 
states,  among  them  six  slave  states,  with  Virginia  at  their  head,  re- 
jected this  upon  the  ground  that  the  supreme  court  was  already 
entrusted  with  this  task.    Not  one  state  voted  for  the  amendment. 


62  COXSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

place,  the  controversy  must  have  assumed  the  form  of  an 
actual  law-suit  in  order  to  come  before  the  courts  at  all. 
If  it  has  been  brought  before  them  in  this  form,  3-et  they 
never  sit  as  courts  to  decide  directly  upon  the  constitu- 
tionality of  laws,  or  of  other  acts  of  the  government. 
They  decide  constitutional  questions  in  a  given  case  only 
by  stating  the  reasons  for  their  judgment.  Strictly 
speaking,  it  is  only  the  case  which  is  decided,  and  there- 
fore their  judgment  is  absolutely  binding  on  all  individ- 
uals and  on  all  political  powers  only  so  far  as  this  case  is 
concerned.  But  since  it  is  fair  to  assume  that  in  all  anal- 
ogous cases  the  same  decision  would  be  given,  the  reasons 
for  a  judgment  upon  the  constitutionality  of  the  law 
usually  amount  to  an  actual  decision  of  the  question  of 
constitutionality.  But  that  these  questions  cannot  be 
decided,  in  a  proper  sense  of  the  word,  is  clear  from  th(^ 
fact  that  the  supreme  court  can  change  its  opinion,  and  has 
changed  it,  in  constitutional  questions  of  the  highest  sig- 
nificance after  the  lapse  of  a  comparatively  short  time.' 
It    sometimes    only  needs   the  introduction  of  a  single 

1  Thus,  for  example,  in  the  so-called  legal  tender  cases  in  1870,  by 
five  to  three  votes,  the  court  denied  congress  the  power  to  make  the 
paper  money  of  the  United  States  legal  tender  for  debts  contracts! 
previously.  In  the  following  j^ear,  this  decision  was  reversed.  The 
reversal  was  brought  about  by  adding  one  judge  to  the  supreme 
court,  and  by  notifying  the  president  that  the  senate  would  make  its 
approval  of  the  nomination  of  the  new  judge,  as  well  as  of  one  to  fill 
a  vacancy  which  liad  meanwhile  occurred,  dependent  upon  the 
position  of  the  candidates  on  this  question.  President  Grant  re- 
sponded to  the  wish  of  his  party  and  the  previous  majority  became 
a  minority.  See  the  article  entitled  "The  Session,"  in  The  North 
American  Revieiv,  CXI.,  pp.  48,  49.  The  new  decision  based  the 
power  upon  the  war  power.  Now,  in  1884,  the  authoritj'  has  been 
again  recognized,  but  inasmuch  as,  in  this  case,  an  appeal  to  the 
war  power  was  not  possible,  it  has  been  deduced  from  the  right  to 
borrow  money.  The  majority  of  1871  declared  that  this  had  notliiiig 
to  do  with  the  matter,  and  therefore  based  it  upon  the  war  po\A-er. 


THE   FEDERAL   CONSTITUTION.  63 

new  judge  to  transform  the  minority  into  a  majority. 
Moreover,  the  supreme  court  is  not  superior,  but  equal,  to 
the  two  other  factors  of  the  federal  government.  Within 
the  sphere  of  their  authority,  the  latter  are  not  only 
authorized  but  directed  to  judge  with  entire  independence 
of  the  constitutionality  of  their  acts.  While  the  supreme 
court  has  always  given  its  opinion  in  the  last  instance  in 
regard  to  disputed  questions  of  constitutional  law  which 
belonged  to  its  forum,  and  were  brought  before  it  in  a 
constitutional  way,^  it  has  also  repeatedly  declared  that  it 
was  neither  directed  nor  permitted  to  concern  itself  with 
the  political  duties  of  the  president,  and  especially  was 
not  authorized  to  interfere  with  them  upon  the  assump- 
tion that  he  was  about  to  carry  out  an  unconstitutional 
law.2  And  it  is  even  more  certain  that  it  does  not  belong 
to  the  supreme  court  to  make  rules  for  the  exercise  by 
congress  of  its  legislative  powers.  The  task  of  the  court 
is  to  say  what  is  law  under  the  constitution,  the  federal 
laws  and  treaties.  The  task  of  congress,  on  the  other 
hand,  is  to  decide  what  shall  be  law  under  the  constitu- 
tion.=*     Thus,  for  example,  not  the  court,  but  congress 

iSee  Martin  vs.  Hunter,  Wheaton,  I,,  304;  McCulloch  vs.  Mary- 
land, Ibid.,  IV.,  316;  Coliens  vs.  Virginia,  Ibid.,  VI.,  264;  Gibbons 
vs.  Ogden,  Ibid,,  IX.,  210;  Batik  of  Hamilton  vs.  Dudley,  Peters,  n., 
524;  Chisholm  vs.  Georgia,  Dallas,  II.,  419;  Ware  vs.  Hilton,  Ibid., 
III.,  199. 

2  See  Mississippi  vs.  Johnson,  Wallace,  FV.,  475,  and  Georgia  vs. 
Stanton,  Ibid.,  VI.,  51. 

3  That  the  courts  actually  take  part  in  the  formation  of  law  can- 
not be  questioned.  They  cannot,  however,  on  this  account,  lay 
claim,  as  Pomeroy  (pp.  66,  67)  would  have  them  do,  to  a  share  of  the 
law-making  power.  The  constitution  expressly  entrusts  congress 
with  "all"  the  law-making  powers  delegated  in  it  and  by  it,  and 
there  can  bo  no  constitutional  law-making  power  which  is  not  created 
by  the  constitution.  The  judges  are  never  authorized,  where  they 
find  a  gap  in  constitutional  law,  in  customary  law,  or  in  statute  law. 


G-i  COXSTITL'TIOXAL    LAW    OF    THE    UNITED    STATES. 

alone,  must  decide  whether  the  means  chosen  by  congress 
for  the  exercise  of  a  constitutional  power  are  "  necessary 
and  proper."  The  court  has  sim]:)ly  to  decide  in  a  given 
case  whether  the  power  which  is  claimed  is  constitutional, 
and  whether  the  choice  of  the  means  selected  is  not  denied 
by  the  constitution.  In  a  word,  the  domain  of  the  court 
is  not  politics  but  law,  and  this  must  control  it  in  decid- 
ing questions  of  law.  The  other  federal  powers  must,  as 
Lincoln  said  in  his  inauo-ural  address,  i^ive  crreat  moral 
weight  to  the  court's  decisions  upon  the  constitutionality 
of  laws  and  other  governmental  acts,  so  far  as  these  decis- 
ions are  not  dicta.  But  except  in  the  particular  case  at 
issue,  the  decisions  have  no  political  control  of  the  co- 
ordinate powers.  If  this  were  granted,  the  people  would 
have  abdicated  and  have  placed  their  fate  in  the  hands  of 
the  court. 

This  has  two  consequences  of  far-reaching  significance. 
In  the  first  place,  sufficient  time  may  elapse  before  dis- 
puted questions  of  constitutional  law  come  before  the 
supreme  court  in  such  a  way  that  it  can  deliver  a  judg- 
ment upon  them,  so  that,  meanwhile,  the  action  of  the 
other  factors  of  the  national  government  may  create 
such  a  state  of  facts  as  to  make  it,  from  a  political,  and 
often  even  from  a  legal,  standpoint,  a  very  serious  mat- 
ter to  declare  the  laws  or  actions  in  cpiestion  to  be  uncon- 
stitutional. The  supreme  court  would,  in  such  a  case, 
come  to  such  a  conclusion  with  the  more  difficulty,  because 

to  decide  according  to  their  own  freewill,  i.  e.,  to  decide,  as  law- 
makers, what  the  law  shall  be.  Wherever,  in  such  a  case,  they  do 
by  their  judgments  aid  in  the  formation  of  law,  it  happens  only  in 
this  vv^ay :  that  they  follow  to  their  logical  conclusion,  and  apply  to 
the  given  case,  provisions  of  constitutional,  customary  or  statute  law. 
The  formation  of  law  is  therefore,  in  such  a  case,  not  to  be  considered 
as  tlie  creation  of  a  new  law.  The  law  is  already  in  existence,  but  it 
first  assumes  fixed  form  upon  its  application  to  a  concrete  case. 


TUE    FEDERAL   CONSTITUTIOJf.  65 

from  the  beorinnins:  it  has  made  it  a  maxim  that  no  law 
should  be  declared  unconstitutional  simply  because  there 
were  arguments  of  a  certain  weight  against  its  consti- 
tutionality, i.  e.,  that  the  presumption  should  always  be 
for  instead  of  against  the  constitutionality  of  the  acts  of 
the  other  factors  of  the  government.'  But  besides  this, 
there  are  other  disputed  constitutional  questions  which,  in 
their  nature,  can  never  be  brought  before  the  supreme 
court  or  decided  by  it.  Moreover,  violations  of  the  con- 
stitution may  happen,  and   those  who   are   injured  by 

1  See  Cooley,  Constitutional  Limitations,  pp.  182-185,  where  the 
judicial  decisions  setting  forth  this  principle  are  collected.  The  sen- 
tence quoted  from  a  decision  by  Justice  Washington  is  especially 
noteworthy.  In  the  Sinking  Fund  Cases  (99  U.  S. ,  Otto,  IX. ,  7-18),  it 
is  said:  "  This  declaration  should  never  be  made  except  in  a  clear 
case.  Every  possible  presumption  is  in  favor  of  the  validity  of  a 
statute,  and  this  continues  until  the  contrary  is  shown  beyond  a 
rational  doubt.  One  branch  of  the  government  cannot  encroach  on 
the  domain  of  another  without  danger.  The  safety  of  our  institu- 
tions depends  in  no  small  degree  on  a  strict  observance  of  this  salu- 
tary rule."  James  B.  Thayer  thinks  that  the  whole  emphasis  should 
be  laid  upon  the  word  "  rational,"  and  goes  on  to  say:  "  But  in  de- 
termining the  constitutionality  of  legislative  action,  a  court  is  called 
upon  to  consider  what,  under  the  constitution,  is  the  admissible  view, 
rather  than  what  is  the  right  view  of  legislative  power."  The  Nation, 
April  10,  1884.  Upon  the  question  of  the  unconstitutionality  of  laws, 
the  following  statements  are  of  great  significance:  "The  same  stat- 
ute may  be  in  part  constitutional,  and  in  part  unconstitutional,  and 
if  the  parts  are  wholly  independent  of  each  other,  that  which  is  con- 
stitutional may  stand,  while  that  which  is  unconstitutional  will  be 
rejected.  But  if  they  are  so  mutually  connected  with,  and  depend- 
ent upon,  each  other  as  conditions,  considerations,  or  compensations 
for  each  other,  as  to  warrant  a  beUef  that  the  legislature  intended 
them  as  a  whole,  and  that  if  all  could  not  be  carried  into  effect,  the 
legislature  would  not  pass  the  residue  independently,  and  some  parts 
are  unconstitutional,  all  of  the  provisions  which  are  thus  dependent, 
conditional  or  connected,  must  fall  with  them."  Hammond,  I.,  22, 
1^  63,  where  the  judicial  decisions  upon  this  question  are  cited. 
5 


66  COXSTITUTIONAL    LAW   OF   THE    UNITED    STATES. 

tliem  cannot,  whether  states  or  individuals,  obtain  justice 
through  the  courts.'  When  the  wrongs  suffered  are  po- 
litical in  their  origin,  the  remedies  must  be  sought  in  a 
political  way.  Of  course,  they  can  frequently  be  ob- 
tained only  indirectly,  and  can  simply  prevent  further 
injustice.  They  cannot  give  satisfaction  for  the  wrong 
already  done.  Yet  it  does  not  by  any  means  follow  from 
this  that  the  sovereign  states  are  authorized  "  to  inter- 
pose," as  the  state's-rights  school  phrases  it.  In  these 
cases  the  different  factors  of  the  federal  government 
must  themselves  decide  ultimately  upon  the  extent  of 
their  constitutional  powers.  If  each  state  had  the  right, 
so  far  as  its  interests  were  in  question,  to  decide  on  such 
a  point,  the  federal  government  would  cease  to  be  a  gov- 
ernment, and  anarchy  would  become  the  supreme  law  of 
the  Union.  And  so  the  argument  that  the  president,  and 
especially  congress,  if  withdrawn  from  judicial  control, 
can  bend  the  constitution  to  their  usurping  wills,  is  of  no 
avail.  It  is  a  fundamental  principle,  not  only  of  politics, 
but  of  constitutional  law,  that  the  possibility  of  the  mis- 
use of  a  power  is  not  a  proof  of  the  non-existence  of  the 
power. 

1  So  far  as  the  supreme  court  is  concerned,  it  is  a  significant  fact 
that  it  can  be  appealed  to  only  in  certain  cases  specified  in  the  consti- 
tution, but  congress  is  to  decide  in  wliich  of  these  cases  there  shall 
be  a  right  to  appeal.  In  one  case,  in  which  the  question  of  the  con- 
stitutionality of  the  reconstruction  laws  could  be  raised  only  by  an 
appeal,  congress  took  away  from  the  supreme  court  the  right  to  take 
cognizance  of  the  case,  and  this,  too,  after  the  appeal  had  already 
been  taken.  The  reason  for  this  was,  of  course,  that  congress  thought 
it  undesirable  to  have  a  decision  of  the  supreme  court.  See  McCar- 
dle's  Case,  Wallace,  VII.,  506. 


THE   FEDERAL   CONSTITUTION.  67 

ORGANIZATION  OF  THE  FEDERAL  GOVERNMENT. 

§  20.  The  Three  Departments,  The  articles  of  con- 
federation preserved  the  actual  condition  of  affairs 
brought  about  by  the  Revolution,  and  entrusted  the  en- 
tire business  of  the  federation  to  one  single  organ.  On 
the  other  hand,  the  constitution  established  three  depart- 
ments. These  together  constitute  the  government.  In 
spoken  and  written  discussions  of  this  change,  Montes- 
quieu's doctrine  of  the  division  of  powers  was  mainly 
relied  upon.  But  the  type  presented  by  the  English  con- 
stitution had  already  had  much  greater  influence.  Yet 
the  lessons  derived  from  the  country's  own  sad  experience 
were  decisive.  And  therefore  the  authors  of  the  consti- 
tution did  not  seek  to  copy  the  English  pattern  exactly. 
Much  less  did  they  pursue  the  principle  they  recognized 
with  stubborn  doctrinairism  and  short-sightedness  to  its 
logical  consequences.  The  three  governmental  factors 
were  congress,  the  president,  and  the  supreme  court. 
They  were  endowed  with  the  legislative,  executive  and 
judicial  powers.  But  while  their  respective  jurisdictions 
are  sufficiently  defined  as  between  themselves,  these  juris- 
dictions by  no  means  completely  coincide  with  these 
three  forms  of  political  action.  They  intersect  each  other 
in  manifold  ways,  and  often  the  authoritative  will  works 
its  ends  only  by  their  co-operation.  The  three  depart- 
ments stand  side  by  side,  but  are  not,  as  is  frequently  as- 
serted, independent  of  one  another.  This  is  so  little  the 
case  that  Pomeroy  (p.  89)  rightly  says :  "  Each  is  so  com- 
pletely dependent  on  the  others  that  without  them  it 
could  do  practically  nothing."  That  this  was  so  arranged 
with  full  intention  appears  from  the  Federalist  (No.  48) : 
"Unless  these  departments  be  so  far  connected  and 
blended  as  to  give  to  each  a  constitutional  control  over 


68  CONSTITUTIONAL    LAW    OF    THE    UNTfED    STATES. 

the  others,  the  degree  of  separation  which  the  maxim  re- 
quires as  essential  to  a  free  government  can  never,  in  prac- 
tice, be  duly  maintained."  In  the  organization  of  the 
government  each  department  was  given  a  constitutional 
control  of  the  other  two.  Hence  there  can  be  no  superi- 
ority or  inferiority  among  them.  It  is,  moreover,  a  funda- 
mental principle  of  the  constitution  that  the  three  factors 
of  government  are  in  com])lete  co-ordination, —  co-ordi- 
nate, but  not  of  equal  power.  In  this  respect  the  consti- 
tution put  them  on  an  entirely  different  footing,  and  the 
actual  develojjment  of  circumstances  has  very  consider- 
ably increased  this  original  difference.  For  that  differ- 
ence has  its  only  source  in  the  nature  of  things,  i.  e.^  in 
the  nature  of  the  functions  with  which  they  are  entrusted. 
In  the  political  contests  of  the  past  —  sometimes  im- 
pliedly, sometimes  expressly  —  congress  has  repeatedly 
claimed,  and  at  least  once  the  president'  has  claimed,  a 
certain  superior  authority.  Both  rested  the  claim  upon 
being  in  a  higher  degree  than  the  other  the  representa- 
tive of  the  "  people,"  the  source  of  all  power.  Of  such  k 
difference  the  constitution  knows  naufifht.  Even  thoucrh 
it  existed,  the  co-ordination  of  the  governmental  factors 
would  be  absolutely  untouched,  as  each  of  them  indubita- 
bly possesses  only  the  powers  delegated  to  it  by  the  con- 
stitution. Apart  from  this,  moreover,  the  claim  would 
be  untenable,  because  the  condition  precedent  of  the 
argument  in  support  of  the  claim  does  not  exist.  The 
people  of  the  United  States,  as  a  unified,  organized  bodv, 
never  appear  in  the  arena  of  political  action.  Even  where 
the  people  act  most  directly,  they  always  do  so  through 
their  state  organizations.  Xone  of  the  factors  of  gov- 
ernment is,  therefore,  called  into  life  in  such  a  way  as  to 
justify  it  in  designating  itself  as  a  direct  representative 
'  Andrew  Jackson. 


THE    FEDERAL   CONSTITUTION.  69 

of  the. people.  There  could  be  no  claim  of  an  order  of 
rank  among  them,  even  if  it  were  permitted  to  deduce 
the  constitutional  law  of  the  land  from  "  the  democratic 
principle."  In  spite  of  the  great  role  which  appeals  to 
"the  democratic  principle"  have  played  in  the  constitu- 
tional history  of  the  United  States,  there  is  not  the  least 
doubt  of  its  absolute  inapplicability,  for  these  appeals 
substitute  for  the  constitution  this  principle,  or  what  is 
declared  to  be  a  consequence  thereof.  The  sovereign 
people  have  made  unto  themselves  the  constitution  as 
their  supreme  law.  They  have  therein  merely  assigned 
a  fixed  place  to  each  of  the  three  factors  of  government, 
without  regarding  it  as  necessary  either  to  the  public 
dignity  or  interests  to  admeasure  its  respective  authorit}' 
in  proportion  to  the  participation  of  the  people  —  the 
voters  —  in  its  organization.  Had  that  been  the  inten- 
tion of  the  authors  of  the  constitution,  they  would  not, 
on  the  one  hand,  have  given  that  factor  (the  supreme 
court),  to  which  its  final  interpretation  as  a  rule  belongs, 
the  greatest  possible  stability,  and,  on  the  other,  have 
withheld  from  the  "  people  "  every  immediate  influence 
upon  the  formation  of  this  factor. 

§  21.  The  Term  of  Office.  Just  as  the  provision  that 
the  members  of  the  supreme  court  shall  be  appointed  by 
the  president  with  the  consent  of  the  senate  for  life  or 
during  good  behavior  disregards  "the  democratic  prin- 
ciple," so  all  the  other  provisions  relating  to  the  terms  of 
office  of  the  other  possessors  of  the  powers  of  government 
depend  solely  upon  the  demands  of  public  policy.  The 
president  is  elected  for  four  years,  and  enters  upon  the 
duties  of  his  office  on  the  4th  day  of  March.  Relative 
to  eligibility  for  re-election,  the  constitution  says  nothing. 
A  single  re-election  has  frequently  occurred,  but  a  re- 
elected president  has  never  even  been  renominated  bv 


70  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

his  party,  much  less  actually  re-elected,  for  a  third  term.' 
The  suggestion  often  made,  to  abolish  the  right  of  re- 
election, has  thus  far  found  so  little  approbation  among 
the  people  that  it  has  been  somewhat  vigorously  agitated 
only  during  a  few  presidential  campaigns.  The  vice- 
president  is  elected  simultaneously  with  the  president  and 
for  the  same  period  of  time.  Congress  consists  of  the 
house  of  representatives  and  of  the  senate.  The  mem- 
bers of  the  house  of  representatives  are  elected  for  two 
years.  Their  terms  all  end  on  every  second  4th  of  March. 
Only  in  cases  of  vacancies  does  the  governor  of  the  state 
concerned  order  a  special  election  to  fill  the  vacancy  (art. 
I.,  sec.  2,  §  4).'"  This  term  of  office  is  absolutely  manda- 
tory for  the  whole  house.  A  dissolution  of  congress  is 
not  recognized  by  the  constitution.  The  term  of  the 
house  of  representatives  constitutes  a  legislative  period 
and  is  the  basis  of  political  chronology.  The  count  is 
by  ''  congresses,"  and  each  new  house  of  representatives 
brings  a  new  "  congress  "  into  existence.  The  presiden- 
tial term  of  office  covers  two  legislative  periods.  The 
senators  are  elected  by  the  different  state  legislatures  for 
the  term  of  six  years.  If  a  vacancy  occurs,  the  governor 
of  the  state  concerned  is  authorized  to  fill  it  provisionally 
by  appointment,  if  the  legislature  is  not  in  session  at  the 
time  (art.  I.,  sec.  3,  §  2).*  After  the  legislature  is  again 
in  session,  a  new  election  of  a  senator  takes  place,  not  for 
a  term  of  six  years,  but  only  for  the  unexpired  part  of 
the  term.     This  is  because  the  senate  is  not  subject  to  an 

'  A  portion  of  the  republican  party  made  very  energetic  but  ulti- 
mately fruitless  efforts  in  1880  to  break  through  this  tradition  in  favor 
of  General  Grant. 

2  Vacancies  occur  through  death,  resignation,  expulsion,  and  accept- 
ance of  an  office  incompatible  with  that  of  congressman. 

3  The  governor  is  not  authorized  to  make  the  appointment  if  the 
vacancy  has  not  yet  actually  occurred,  but  is  only  prospective. 


THE   FEDERAL   CONSTITUTION.  71 

integral  or  total  renewal,  but  yet  at  the  expiration  of 
each  legislative  period,  one-third  of  the  senators  retire. 
On  this  account  (according  to  art.  I.,  sec.  3,  §  2),  at  the 
foundation  of  the  government,  the  senators  were  dis- 
tributed into  three  classes  by  lot ;  but  care  was  taken 
that  both  senators  from  one  state  did  not  fall  into  the 
same  class.  When  a  new  state  is  admitted  into  the  Union, 
its  senators  are  likewise  placed  by  lot  in  different  classes. 
Thus  the  senatorial  term  of  office,  next  to  that  of  the 
federal  judges,  is  not  only  the  longest,  but  the  senate 
itself  is  likewise,  though  not  in  the  manner  of  the  supreme 
court,  a  permanent  body  with  perpetual  succession.  The 
government  is  on.  the  one  hand  assured,  by  this  systematic 
diversity  of  official  terms,  of  the  continual  influx  of  new 
blood,  which  keeps  it  in  immediate  and  active  sympathy 
with  the  existing  wishes  of  the  people.  On  the  other 
hand,  the  danger  of  the  government's  reflecting  only  the 
momentary  popular  humor  is  thus  also  obviated. 

§  22.  Mode  of  Election. —  The  Active  Right  of  Suf- 
frage. A  like  amalgamation  of  a  self-conscious  demo- 
cratic spirit  and  conservative  forecast  characterizes  every 
provision  concerning  the  formation  of  those  two  depart- 
ments which,  in  the  more  limited  sense  of  the  word,  are 
designated  as  the  government.^ 

The  members  of  the  house  of  representatives  must  be 
elected  "  by  the  people  of  the  several  states  "  (art.  I.,  sec. 
2,  §  1).  Farrar  (p.  150)  thinks  that  by  "  people  "  is  meant 
only  citizens,  and,  in  fact,  only  citizens  of  the  United 

I  What  is  called  the  government  in  Europe  is  styled  the  administra- 
tion in  the  United  States.  The  difference  of  speech  is  well  founded 
in  fact.  In  these,  as  in  all  like  cases  where  the  ideas  do  not  com- 
pletely coincide,  for  the  purpose  of  greater  accuracy  I  shall  always 
adhere  to  the  American  terminology,  after  the  expression  has  once 
been  explained. 


iZ  CONSTITUTIONAL    LA.W    OF    THE    UNITED    STATES. 

States.  This  assertion  is  neither  justified  by  the  most 
famous  commentators  on  the  constitution,  nor  is  it  in  ac- 
cordance Avith  practice.  The  provision  is  simply  that 
the  rej)rescntatives  shall  receive  their  authority  by  a  di- 
rect election,  for  further  on  it  is  set  forth :  "  The  elect- 
ors in  each  state  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  state 
legislature."  The  active  right  of  voting  for  congress- 
men, it  thus  appears,  is  not  established  on  the  same  basis 
for  all  of  the  United  States,  either  by  the  constitution  or 
laws  of  the  Union.  In  each  state  it  may  be  made  de- 
pendent upon  different  conditions.  Formerly  the  great- 
est diversities  prevailed  in  this  respect,  and  even  now 
there  is  no  complete  uniformity.  Yet  from  a  constitu- 
tional standpoint  it  is  not  correct  merely  to  state  that 
the  constitution  left  it  entirely  to  the  judgment  of  the 
states  to  determine  the  qualifications  of  the  voter  at  elec- 
tions to  the  house  of  representatives.  It  would  be  more 
correct  to  say  that  the  states  have  never  had  any  power 
whatever  in  the  matter.^  The  states  have  only  to  decide 
Avho  shall  possess  the  franchise  at  elections  to  the  most 
numerous  branch  of  the  state  legislature.  The  constitu- 
tion makes  the  possessors  of  this  franchise  the  electors 
for  the  house  of  representatives.  It  may  seem  at  first 
sight  that  this  is  only  a  logical  distinction,  without  any 
practical  difference.  But  this  is  not  so.  The  states,  in 
many  instances,  in  framing  their  election  laws,  paid  no 
attention  to  the  elections  for  the  house  of  representatives. 

1  Congress  also  has  the  right  to  protect  voters  in  the  exercise  of  the 
franchise;  to  punish  election  officials  for  unlawful  practices;  to  di- 
rect the  registration  of  voters,  etc.  How  far  it  may  exercise  these 
rights  is  within  its  judgment,  but  so  far  as  it  does  exercise  them  the 
conflicting  provisions  of  the  state  laws  will  be  of  no  avail.  Ex  jxirte 
Siebold,  100  U.  S.,  37t ;  Ex  parte  Clarke,  100  U.  S.  (Otto,  X.),  299. 


THE    FEDERAL   CONSTITUTION.  73 

They  considered  simply  tiieir  own  public  affairs.  This  is 
why,  for  instance,  many  states  have  given  the  franchise 
to  non-naturalized  foreigners,  who  thereby  were  endowed 
under  the  constitution  with  the  franchise  at  elections  to 
the  house  of  representatives.  We  have,  then,  this  curious 
spectacle :  that,  in  the  democratic  republic,  male  citizens 
of  full  age,  of  good  character,  and  of  sound  mind,  cannot 
vote  for  members  of  the  people's  house  of  the  Union, 
while  certain  pereons  who  are  not  citizens  can  do  so. 
Having  or  not  having  the  franchise  depends,  in  the  first 
place,  upon  the  domicile.  A  change  in  that  may  give  or 
may  forfeit  the  franchise.  In  the  United  States,  as  such, 
universal  suffrage  (so  called)  does  not  exist.  Moreover, 
citizenship  is  not  a  condition  precedent  of  the  fran- 
chise.^ 

The  amendments  adopted  after  the  civil  war  have 
brought  about  a  much  greater  uniformity  with  regard  to 
the  franchise,  but  the  anomalies  just  noted  have  not  been 
set  aside.  The  second  section  of  the  fourteenth  amend- 
ment declares  that  the  states  shall  be  represented  in  the 
house  of  representatives  in  proportion  to  the  total  number 
of  their  inhabitants,  exclusive  of  the  untaxed  Indians.^ 

1  See  Scott  vs.  Sanford  (better  known  as  the  Dred-Scott  decision), 
Howard,  XIX.,  404-414. 

2  Art.  I.,  sec.  2,  §  3,  provides  that  each  five  slaves  (but  this  word 
was  avoided)  should  be  counted,  in  regard  to  representation,  as  three 
persons.  The  further  declaration  of  this  paragi'aph,  that  "direct 
taxes  "  sliould  also  be  levied  in  proportion  to  the  population  of  the 
states,  is  not  touched  by  the  fourteenth  amendment,  and  is  tJierefore 
still  in  full  force.  What  is  meant  by  "  direct  taxes  "  has  evoked  very 
divergent  views,  and  there  nas  been  no  authoritative  decision  of  the 
question.  I  must  therefore  rely  upon  the  simple  statement  of  the 
clause,  and  can  do  this  the  more  readily  since  before  the  civil  war 
direct  taxes  were  levied  only  thrice, —  in  1798,  1813  and  1815.  The 
nature  of  certain  taxes  levied  during  the  war  is  a  subject  of  contro- 
versy.   Since  its  termination  the  conti'oversy  has  again  assumed  a 


7 


74  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

"But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  president  and  vice-president  of  the  United 
States,  representatives  in  congress,  the  executive  and  judi- 
cial officers  of  a  state,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
state  being  twenty-one  years  of  age  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  par- 
ticipation in  rebellion  or  other  crime,  the  basis  of  repre- 
sentation therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the 
whole  number  of  male  citizens  twenty-one  years  of  age 
in  such  state.''  So  far  as  this  provision  is  concerned  the 
right  of  the  states  to  regulate  the  franchise  according  to 
their  own  opinions  is  not  in  the  least  abridged ;  but  it  puts 
a  strong  pressure  on  the  states  to  introduce  universal  suf- 
frage. Every  considerable  limitation  of  the  right  of  suf- 
frage henceforth  would  bring  about  a  sensible  diminution 
of  a  state's  representation  in  the  house  of  representatives. 
Pomeroy  (p.  135)  justly  observes  that  this  provision,  di- 
rected mainly  against  the  former  slave  states  and  in- 
tended to  force  them  to  grant  full  political  equality  to  the 
freedmen,  was  the  surrender  of  a  fundamental  principle 
of  the  constitution.  It  is  not  limited  to  the  exercise  of 
an  influence  upon  the  elections  to  the  house  of  represent- 
atives. It  subjects  the  states  to  the  strongest  pressure 
in  framing  their  laws  concerning  the  right  of  suffrage  in 
state  elections.  Hitherto,  on  the  contrary,  the  constitu- 
tion had,  as  a  matter  of  fundamental  principle,  left  with 

purely  academic  character,  and  the  economic  relations  of  the  Union 
suggest  that  it  will  retain  this  character  for  generations  to  come. 
According  to  the  decision  of  the  supreme  court  in  Springer  vs.  The 
United  States  (102  U.  S.,  586),  the  income  tax  is  not  a  "direct  tax'" 
within  the  meaning  of  the  constitution ;  only  poU  taxes  and  taxes  on 
real  estate  are  to  be  regarded  as  "  direct." 


THE   FEDERAL   CONSTITUTION. 


Y5 


the  states  the  absolute  right  of  self-government  in  all 
affairs  peculiarly  their  own. 

In  one  provision,  the  fifteenth  amendment  went  far  in 
advance  of  the  fourteenth.  It  reads:  " The  right  of  citi- 
zens of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  state  on  account 
of  race,  color  or  previous  condition  of  servitude."  In 
opposition  to  a  widespread  opinion,  the  courts  have  de- 
cided, in  every  case  brought  before  them,  that  nobody 
obtained  the  right  to  vote  by  reason  of  this  amendment. 
The  United  States,  as  well  as  the  several  states,  can  still 
withhold  it  forever  from  every  colored  man  and  former 
slave,  but  they  cannot  do  so  on  account  of  his  race,  color 
or  previous  condition  of  servitude.  The  states'  right  of 
self-government  relative  to  the  franchise  has  now  un- 
doubtedly suffered  a  legal  limitation,  not  because  they 
have  been  obliged  to  grant  the  suffrage  to  certain  per- 
sons, but  because  they  are  forbidden  to  refuse  it  on  cer- 
tain grounds. 

The  number  of  members  of  the  house  of  representatives 
is  not  fixed  by  the  constitution.  It  merely  declares  that 
every  tenth  year  an  enumeration  of  the  people  shall  be 
made,  that  the  number  of  representatives  shall  not  exceed 
one  for  every  30,000  inhabitants,  and  that  each  state 
shall  have  at  least  one  representative  (art.  I.,  sec.  2,  §  3). 
The  basis  of  representation  has  been  repeatedly  changed 
by  law  in  accordance  with  the  results  of  the  decennial 
census.  After  the  first  census  it  was  fixed  at  33,000; 
now  it  is  154,325 ;  and  the  number  of  members  has  grown 
from  65  and  105  to  325,  to  which  a  delegate  from  each  of 
the  eight  territories  is  to  be  added.^ 

1  There  were  65  members  according  to  the  temporary  provisions  of 
the  constitution,  and  105  after  March  4,  1793,  upon  the  basis  of  the 
first  census.    Nevada  had,  according  to  the  census  of  1880,  only  a 


(b  CONSTITL'TIONAL    LAW    OF    THE    UNITED    STATES. 

Just  as  witli  I'eference  to  the  membership  of  the  house 
of  ropresontatives,  so  also  in  regard  to  the  other  regula- 
tions of  elections  —  and  that  too  for  both  houses — ^the 
constitution  has  guarded  the  ])0ssibility  of  letting  expe- 
rience shape  matters  in  fullest  accord  with  the  changing 
demands  of  every  new  situation.  Art.  I.,  sec.  4.  §  1,  pro- 
vides: "  Thy  times,  places  and  manner  of  holding  elec- 
tions for  senators  and  representatives  shall  be  prescribed 
in  each  state  by  the  legislature  thereof,  but  the  congress 
may  at  any  time  by  law  make  or  alter  such  regulations, 
except  as  to  the  places  of  choosing  senators."  This  ex- 
ception is  evidently  founded  on  the  fact  that  the  senators 
are  elected  by  the  legislatures,  and  it  would  not  be  in  har- 
mony with  the  federal  character  of  the  Union  to  gi'ant  to 
congress  the  right  of  determining  the  places  for  the  meeting 
of  the  legislatures  of  the  several  states.  For  a  long  time  con- 
gress made  no  use  of  the  powers  granted  it  by  this  clause. 
In  1842,  for  the  first  time,  it  declared  that  elections  for  the 
house  of  representatives  should  take  place  by  districts.^ 
But  now,  on  the  contrary,  the  constant  and  actual  consoli- 
dation of  the  Union  has  found  even  in  this  resjiect  a  cor- 
responding legal  expression.  An  act  of  February  2,  1872, 
provides  that  from  and  after  the  year  1876  in  every  second 
year  the  election  for  members  of  the  house  of  representa- 
tives shall  take  place  on  the  Tuesday  succeeding  the  first 
Monday  of  November   in   fixed   geographical  districts.^ 

population  of  62,2G6,  and  would  thus  have  probably  had  no  represent- 
ative, if  the  constitution  had  not  provided  in  this  way  for  such  a 
case.  So,  too,  the  population  of  Delaware  fell  several  hundreds  be- 
low the  established  standard-nuniher  of  154,825.  At  this  time  four 
states  have  each  but  one  representative. 

'  For  a  discussion  of  the  disregard  of  this  law  on  the  part  of  several 
states  and  the  approval  of  their  action  by  the  house  of  representa- 
tives, see  my  C'onNtitutional  History.  II.,  505  et  seq. 

■i Statutes  at  Large,  XVII.,  28,  sees.  2,  3.  The  fifth  section  of  this 
law  declares  that  in  future  no  state  shall  be  admitted  into  the  Union 


THE    FEDERAL   CONSTITUTION.  77 

The  votes  cast  must  be  on  either  written  or  printed  bal- 
lots.^    The  elections  of  senators  had  already  been,  by  an 
act  of  July  25,  1866,  very  precisely  arranged  and  regu- 
lated.    The  election  must  take  place  on  the  second  Tues- 
day after  the  assembling  and  organization  of  the  legis- 
lature.    In  each  house  each  member  declares  his  vote 
viva  voce.    At  noon  of  the  day  following  both  houses 
meet  in  joint  convention,  and  if  in  each  the  same  person 
has  obtained  a  majority  of  all  the  votes  cast,  the  election 
is  completed.     If  this  is  not  the  case,  or  if  one  of  the  two 
houses  has  not  entered  upon  the  election  in  the  manner 
prescribed,  then  the  joint  convention  proceeds  tp  viva- 
voce  voting  until  a  majority  of  the  voters  have  united 
upon  one  person.     The  election  is  legal  only  when  a  ma- 
jority of  all  the  members  elect  are  present  and  vote.     For 
elections  necessary  on  account  of  a  vacancy  substantially 
the  same  provisions  obtain.    The  regular  elections  are  held 
by  the  last  legislature  elected  before  the  expiration  of  the 
term  of  office  of  a  senator. 

"  without  having  the  necessary  population  to  entitle  it  to  at  least  one 
representative  according  to  the  ratio  of  representation  fixed  by  this 
bill."  After  the  census  of  1870,  in  accordance  with  the  provisions  of 
this  act,  there  was  one  representative  for  every  131,425  inhabitants. 
As  it  is  not  intended  to  compel  the  states  to  headlong  changes  of 
their  election  districts,  and  the  number  thereof  naturally  often  fails 
to  agree  with  the  number  of  representatives  to  which,  on  the  basis 
of  a  new  census,  the  states  are  entitled,  they  are  permitted  to  elect 
the  additional  quota  of  representatives  from  the  state  at  large,—  con- 
gressmen at  large. 

1  Act  of  February  28,  1871,  sec.  19;  Statutes  at  Large.  XVII.,  440. 
Formerly  the  states  even  in  this  respect  could  act  as  they  deemed 
proper.  It  is  left  for  them  to  determine  whether  an  absolute  major- 
ity is  necessary  to  elect  or  a  plurality  shall  suffice.  In  opposition  to 
the  law  prevailing  in  England,  the  New  England  colonies  adopted 
wholly  or  in  part  the  principle  of  the  absolute  majority,  but  in  the 
course  of  time  the  principle  of  plurality  wins  more  and  more  the  pre- 
dominance in  the  United  States,  if  indeed  the  former  has  not  yet  been 
completely  displaced. 


»^  COXSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

§  23.  The  Right  of   Instruction.      Xo   constitutional 
relation  of  any  kind  whatsoever  exists  between  the  sen- 
ators and  legislatures,  after  a  valid  and  complete  election. 
Legislatures  have,  indeed,  very  frequently,  by  passing 
resolutions,  "instructed''  the  senators   of  their  state  — 
and  that,  too,  without  regard  to  whether  they  were  elected 
by  them  or  former  legislatures  —  as  to  what  attitude  they 
should   take   upon   certain   questions.      The   senators  — 
especially  in  early  times  those  of  the  democratic  party, 
as  a  rule  —  frequently  acknowledged  the  right  of  "in- 
struction."    There  is  not,  however,  a  particle  of  doubt 
that  the  claim  of  such  a  right,  as  has  already  been  said, 
is  not  only  extra-constitutional,  but  directly  unconstitu- 
tional.    The  constitution   does   not   once   recognize  the 
constituent's   right  of  instruction.     But  the  legislatures 
are  as  little  the  constituents  of  the  senators  as  the  presi- 
dential  electors   are   the   constituents  of  the  president. 
Like  the  latter,  they  are  merely  entrusted  wath  the  elec- 
tion.    If  legislatures  possessed  the  right  of  instruction, 
they  would   necessarily   possess   the   power  to   enforce 
obedience.     They  would,  therefore,  have  to  be  able  to 
unseat  a  disobedient  senator.     But  the  constitution  fixes 
the  term  at  six  years,  and  the  legislatures  cannot  lengthen 
or  shorten  it  by  even  one  day.     Since,  moreover,  in  all  the 
states,  one  house  of  the  legislature  is  reneAved  at  least  every 
two  years,  the  balance  of  parties  during  the  senatorial 
term  of  office  may  be  overthrown  at  least  once,  and  quite 
likely  twice.     But  even  the  most  extreme  state' s-rights 
advocate  never  ventured  the  assertion  that  such  an  event 
imposed  on  a  senator  a  moral  obligation  to  resign.     Nev- 
ertheless, if  this  happens,  it  is  not  simply  on  one  certain 
question  that  he  is  out  of  accord  with  the  will  of  the  leg- 
islature: on  all  party  questions  he  opposes  it.     A  right  of 
instruction  that  presupposes  an  identical  partisan  position 
is  a  manifest  absurdity.     And  yet  it  must  depend  upon 


THE   FEDERAL   CONSTITUTION.  79 

this  presupposition,  for  the  two  senators  of  a  state  are 
elected  by  two  different  legislatures,  and  it  is  therefore 
a  matter  of  common  occurrence  that  they  should  belong 
to  two  different  parties.  Despite  this,  they  are  absolutely 
equal  representatives  of  their  state.  The  constitution 
(art.  I.,  sec.  3,  §  1)  provides :  "  Each  senator  shall  have 
one  vote."  It  is  therefore  proper  only  in  a  very  limited 
sense  to  call  the  senate  the  congressional  house  of  states. 
The  votes  of  the  states  are  not  cast  there.  Each  senator 
votes  according  to  his  own  convictions,  and  on  his  own 
personal  responsibility.  A  legislature  cannot  assert  that 
the  state  is  practically  deprived  of  its  proper  weight  in  the 
senate  because  the  vote  of  a  senator  elected  by  a  former 
legislature  neutralizes  the  vote  of  one  of  an  opposite 
party  elected  by  a  more  recent  legislature.  The  state 
has  no  right  of  complaint,  moreover,  even  when  —  as 
may  easily  be  the  case  —  both  senators  belong  to  a  party 
which,  at  the  moment,  is  in  a  minority  in  the  state. 

There  is  no  difference  in  the  political  existence  of  the 
house  of  representatives  and  of  the  senate,  from  the 
standpoint  of  constitutional  law.  Their  functions  are  not 
quite  the  same;  the  mode  of  election,  the  voters,  and  the 
tenure  of  office  are  different ;  and  in  the  senate  the  states 
as  such  have  equal  representation,  whereas  in  the  house 
of  representatives  representation  is  in  proportion  to  the 
population.  But  the  constitutional  nature  of  the  tenure 
of  office  is  the  same  for  both  houses  of  congress.  The 
mistake  of  the  state's-rights  conception  of  this  question 
is,  that  it  treats  the  legislatures  and  the  states  as  identical. 
But  according  to  the  constitution,  the  latter,  not  the 
former,  are  represented  in  the  senate.^ 

1  It  has  happened  that  senators  have  resigned  because  obedience  to 
instructions  was  irreconcilable  with  their  consciences,  and  they  rec- 
ognized the  right  of  the  legislature  to  demand  the  representation  of 
its  views  in  the  senate. 


80  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

The  conditions  upon  which  the  passive  right  of  suffrage 
(the  right  to  be  voted  for)  depends  are  in  substance  the 
same  for  both  liouses  of  congress.  For  the  senate  they  are 
simply  somewhat  more  severe.  To  be  eligible  a  person 
must  be  at  least  twenty-five  (thirty)  years  of  age,  have 
been  a  citizen  of  the  United  States  for  at  least  seven  (nine) 
years,  and  be  an  inhabitant  of  the  state  at  the  time  of  the 
election.^  The  third  section  of  the  fourteenth  amendment 
moreover  provides :  "  Xo  person  shall  be  a  senator  or  rep- 
resentative in  congress,  or  elector  of  jiresident  and  vice- 
president,  or  hold  any  office,  civil  or  military,  under  the 
United  States  or  under  any  state,  who,  having  previously 
taken  an  oath  asa  member  of  congress,  or  as  an  officer  of  the 
United  States,  or  as  a  member  of  any  state  legislature,  or  as 
an  executive  or  judicial  officer  of  any  state,  to  support  the 
constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  congress  may, 
by  a  vote  of  two-thirds  of  each  house,  remove  such  disa- 
bility." Daring  the  so-called  period  of  reconstruction, 
these  provisions  were  of  great  moment.  Since  its  close, 
they  are  of  importance  only  in  so  far  as  they  tend  to  pre- 
vent the  revival  of  doctrines  which,  in  their  ultimate  con- 
sequences, led  to  the  absurdity  of  constitutional  rebellion. 

§  2i.  Congress.  As  the  elections  to  the  house  of  rep- 
resentatives and  to  the  senate  in  accordance  with  the 
provisions  of  the  constitution  and  the  laws  proceed  with- 
out the  co-operation  of  the  federal  executive  power,  so  in 
the  regular  course  of  affairs  there  is  no  need  of  its  inter- 
vention to  call  the  representatives  and  senators  to  assem- 

•  The  tenure  of  office  does  not  cease  by  reason  of  removal  of  the 
elected  person  to  another  state  after  his  election.  Diplomatic  offi- 
cials of  the  Union,  even  vphen  at  their  posts  in  foreign  countries,  are 
recognized  as  "inhabitants"  of  their  respective  states  and  are  eligi- 
ble. 


THE   FEDEEAL   CONSTITUTION.  81 

ble  together  in  congress.  Art.  L,  sec.  4,  §  2,  provides: 
"  The  congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  ou  the  first  Monday  in  Decem- 
ber, unless  they  shall  by  law  appoint  a  different  day."  ^ 
The  president  can,  however  (art.  II.,  sec.  3,  §  2),  "  on  ex- 
traordinary occasions  convene  both  houses  or  either  of 
them."  2 

In  congress  itself  different  views  have  been  maintained 
with  great  vigor  on  the  question  as  to  whether  the  con- 
gress comes  into  life  of  and  by  itself  by  virtue  of  the 
meeting  of  the  members  of  both  houses,  or  whether  the 
congress  first  exists  when  both  houses  have  completed 
their  organization,'  The  question,  at  bottom,  however, 
has  only  an  academic  interest,  as  the  co-operative  action 
of  both  houses  as  a  congress  unquestionably  is  possible 
only  after  their  formal  organization  is  effected.  Touching 
the  senate,  however,  such  an  organization  can  be  spoken  of 
only  in  a  very  limited  sense,  since  "  the  vice-president  of 
the  United  States  shall  be  president  of  the  senate  "  (art. 
I.,  sec.  3,  §  4).  "  The  senate  shall  choose  their  other  officers 
and  also  a  president  jpro  tempore  in  [case  of]  the  absence 
of  the  vice-president,  or  when  he  shaU  exercise  the  office 


1  By  virtue  of  the  authority  granted  by  the  la^t  clause,  this  pro- 
vision was  enlarged  by  the  act  of  January  22,  1867,  to  the  extent  that 
congress  should  also  meet  upon  the  day  its  lawful  existence  begins, 
to  wit,  on  March  4  of  the  odd-numbered  years,  and  that  every  con- 
gress should  thus  have  three  regular  sessions.  This  law,  however, 
remained  in  force  only  for  the  three  legislative  periods  of  the  40th, 
41st  and  42d  congresses. 

2  The  clause  proceeds :  ' '  And  in  case  of  disagreement  between  them, 
with  respect  to  the  time  of  adjournment,  he  may  adjourn  them  to 
such  time  as  he  shall  think  proper,"  This  power  has  never  yet  been 
used.  It  is,  however,  to  be  observed,  that  this  right  of  adjournment 
by  the  president  accrues  only  in  the  one  particular  case. 

'  See  my  Constitutional  History,  V.,  212,  218. 
6 


t)2  CUNSTITtTlOXAL    LAW    OF    THK    IXITEI)    STATKS. 

of  president  of  the  United  States."  '  Tiie  house  of  rep- 
resentatives, on  the  other  hand,  in  addition  to  its  other 
officers,  has  to  elect  its  permanent  chairman,  who  bears 
the  title  of  speaker  (art.  I,  sec.  2,  §  5).  As  he  has  to  ap- 
point the  standing  committees  which,  so  far  as  the  house 
IS  concerned,  as  a  rule  practically  shape  all  legislation,  the 
election  of  the  speaker  is  an  act  of  pre-eminent  political 
importance.  In  times  of  great  political  excitement,  when 
neither  party  has  an  absolute  majority,  the  organization 
of  the  house  is  apt  to  become  a  very  serious  question. 
The  other  factors  of  government  have  no  power  to  en- 
force it.-'  In  other  words,  the  majorit}^  of  the  members- 
elect  have  the  power  to  deprive  the  Union  for  the  legisla- 
tive t\vo-3'ear  period  of  its  law-making  functions  by 
preventing  the  organization  of  the  liouse.  On  the  other 
hand,  neither  of  the  two  houses  l)y  itjelf  can  close  a  ses- 
sion after  congress  has  once  met  either  by  virtue  of  the 
constitutional  provisions  or  upon  the  cull  of  the  president. 
•'  iS^either  house,  during  the  session  of  congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the 
tw^o  houses  shall  be  sitting"  (art.  I.,  sec.  5,  §  4). 

§  25.  The  Executive  Power.  "  The  executive  power 
shall  be  vested  in  a  president  of  the  United  States  of 
America  "  (art.  II.,  sec.  1,  §  1).  The  vice-president  has  no 
share  in  the  executive  power.  Ilis  sole  task,  as  long  as 
the  president  acts  as  such,  is  that  of  presiding  over  the 
senate.  Even  though  the  executive  authority  is  far  re- 
moved from  independence  of  the  other  factors  of  govern- 

1  Shortly  before  the  close  of  each  session,  the  vice-president  gives 
the  senate  an  opportunity  to  choose  a  president  jyro  tempore,  so  that 
it  shall  not  be  without  a  presiding  officer,  if  before  the  next  session 
of  congress  the  vice-president  die  or  assume  the  office  of  president. 

2  See  the  sketch  of  the  two-months  campaign  over  the  speakership 
in  the  34th  congress  in  my  Constitutional  History,  V.,  203-219.  The 
house  of  representatives  has  no  permanent  vice-chairman. 


THE    FEDERAL   CONSTITUTION.  83 

ment,  it  is  nevertheless  singularly  simple.  The  president 
is  dependent  in  manifold  ways  upon  the  other  factors, 
but  he  alone  is  the  sole  possessor  of  what  the  constitu- 
tion describes  as  the  executive  power.  The  law  may  con- 
fer upon  the  so-called  secretaries  or  membei*s  of  the 
"  cabinet,"  as  well  as  upon  other  executive  officei's,  inde- 
pendent functions,  but  the  constitution  recognizes  no  rep- 
resentative of  the  president,  no  one  upon  whom  either 
the  law  or  the  free  will  of  the  president  can  temporarily 
confer  even  the  slightest  of  the  privileges  and  duties 
which  the  constitution  grants  to  and  imposes  upon  the 
bearer  of  the  executive  power,  "  In  case  of  the  removal 
of  the  president  from  office,  or  of  his  death,  resignation, 
or  inability  to  discharge  the  powers  and  duties  of  the  said 
office,  the  same  shall  devolve  on  the  vice-president,  and 
the  congress  may  by  law  provide  for  the  case  of  removal, 
death,  resignation  or  inability,  both  of  the  president  and 
vice-president,  declaring  what  officer  shall  then  act  as 
president,  and  such  officer  shall  act  accordingly,  until  the 
disability  be  removed  or  a  president  shall  be  elected." 
Art.  II.,  sec.  1,  §  5.  The  constitution  thus  creates  in  the 
person  of  the  vice-president  an  official  who  in  a  given  case 
is  to  take  the  place  of  the  president.  It  commits  to  con- 
gress the  task  of  providing  for  all  cases  in  which  he  can- 
not discharge  the  duties  of  the  office.  But  in  every  case 
the  rights  and  duties  of  the  place  pass  fully  and  wholly 
over  to  the  designated  person,  either  until  the  expiration 
of  the  term  of  office  or  temporarily.  Any  separation  of 
these  rights  and  duties,  or  of  the  responsibility  imposed 
by  them,  is  under  all  circumstances  absolutely  excluded.' 

1  By  virtue  of  the  authority  conferred  in  the  second  clause  of  the 
paragraph  cited  above,  congress  has  already  provided,  by  the  act  of 
March  1,  1792,  for  the  case  of  the  inability  of  both  the  president  and 
vice-president  to  act.    After  the  vice-president,  the  president  pro 


84  CO>'STITL'TIOXAL    LAW    OF    THE    UJsITED    STATES. 

As  the  president  and  vice-president  are  elected  at  and 
for  tlie  same  time,  the  right  to  be  chosen  to  both  offices  is 
dependent  upon  the  same  conditions  (12th  amendment). 
To  be  eligible,  it  is  necessary  to  be  a  native-born  citizen  of 
the  United  States,-  to  be  at  least  thirty-five  years  of  age, 

iempore  of  tlie  senate,  and  after  him  the  speaker  of  the  house,  takes 
the  office.  Whetlier  these,  hke  the  vice-president,  are  to  exercise  the 
office  of  president  until  tlie  expiration  of  the  presidential  term  de- 
pends upon  how  near  that  is.  As  soon  as  the  dual  vacancy  occurs, 
the  secretarj'  of  state  must  notif}-  the  governor  of  every  state.  If 
this  notification  is  issued  less  than  two  months  before  the  first 
Wednesday  in  December,  and  the  presidential  term  ends  on  the  third 
day  of  March  following,  then  the  president  pro  tempore  of  the  senate 
(or  the  speaker)  performs  the  duties  of  the  executive  authority  until 
the  inauguration  of  the  new  president.  If  this  be  not  the  case,  then 
the  notification  directs  the  choice  or  the  appointment  of  electors. 
This  is  to  take  place  thirty-four  days  before  the  first  Wednesday  in 
December,  if  at  least  two  months  intervene  between  this  date  and 
the  proclamation.  Otherwise  it  is  to  take  place  thirty-four  daJ^s 
prior  to  the  first  Wednesday  in  December  of  the  following  year.  The 
election  by  the  electors  is  to  take  place  on  the  first  Wednesday  of 
December.  Neither  the  constitution  nor  the  laws  provide  for  vacan- 
cies occurring  by  reason  of  the  impossibility  of  electing  either  a  pres- 
ident or  vice-pi-esident.  If  the  house  of  representatives  has  to  elect 
the  president  and  does  not  do  so  before  the  4th  of  March,  when  the 
new  presidential  term  begins,  then  "  the  vice-president  shall  act  as 
president"  (12th  amendment).  Even  so  there  is  nothing  determined 
as  to  who  should  act  as  president  when,  according  to  the  act  of 
March  1,  1792,  the  speaker  ought  to  do  so,  and  the  vacancy  occurs 
between  the  expiration  of  the  legislative  period  and  the  organization 
of  the  new  congress,  so  that  there  is  no  speaker.  Hitherto  by  the 
death  of  the  president  the  presidency  has  four  times  devolved  upon 
the  vice-president :  John  Tyler  in  place  of  W.  H.  Harrison,  April  6, 
1841;  Millard  Fillmore  in  place  of  Zachary  Taylor,  July  9,  1850: 
Andrew  Johnson  in  place  of  Abraham  Lincoln,  April  15,  1865;  Ches- 
ter A.  Arthur  in  place  of  James  A.  Garfield,  September  20,  1881.  A 
double  vacancy  has,  however,  never  yet  occurred. 

2  The  exception  in  favor  of  those  who  at  the  time  of  the  adoption 
of  the  constitution  were  citizens  of  the  United  States  of  course  no 
longer  applies. 


THE   FEDERAL   CONSTITUTION.  85 

and  to  have  had  a  domicile  in  the  United  States  for  at 
least  fourteen  years.  Art.  II.,  sec.  1,  §  4.'  As  to  the 
eligibility  of  electors,  the  constitution  contains  only  the 
negative  provision  that  no  senator,  representative  or  oflB- 
cial  of  the  United  States  shall  be  an  elector.  Article  II., 
§  1.  The  election  is  an  indirect  one.  The  constitu- 
tion provides  that  every  state  shall  have  as  many  electors 
as  it  has  senators  and  representatives  in  congress,  but 
leaves  it  wholly  to  the  legislatures  to  determine  how  they 
shall  be  chosen.  Although  they  are  elected  at  present  in 
all  the  states  by  the  people,  yet  so  far  as  the  federal  con- 
stitution is  concerned,  this  is  solely  a  matter  of  fact. 
Every  state  is  still  authorized  to  do  as  South  Carolina  did 
for  a  long  time, —  have  the  electors  appointed  by  the  leg- 
islature. Or  they  can  be  chosen  in  any  other  manner 
whatsoever.  The  time  when  the  election  takes  place  is 
to  be  fixed  by  congress.  By  act  of  January  23,  1845,  it 
fixed  the  first^  Tuesday  after  the  first  Monday  in  [N'ovem- 
ber  of  every  fourth  year.  This  law  leaves  it  to  the  states 
to  take  proper  legal  measures  to  fill  by  substitutes  any 
vacancies  at  the  meeting  of  the  electoral  college. 

The  Mode  of  Election.  The  legislatures  determine 
for  their  respective  states  the  place  of  the  election,  but  it 
is  the  duty  of  congress  to  fix  the  time,  and  it  must  be  the 
same  day  for  all  of  the  states.  By  act  of  March  1, 1792, 
the  election  takes  place  on  the  first  Wednesday  in  De- 
cember. The  electors  must  vote  on  separate  ballots  for 
one  person  for  president,  and  for  another  as  vice-president.- 

1  The  constitution  does  not  prohibit  the  selection  of  the  president 
and  vice-president  from  the  same  state,  but  the  electors  must  vote, 
so  far  as  one  of  the  two  oflBces  is  concerned,  for  a  person  who  does 
not  belong  to  their  own  state  (12th  amendment). 

2  According  to  the  original  scheme  of  the  constitution,  each  elector 
simply  placed  two  names  on  his  ballot.  Whoever  received  the  great- 
est number  of  votes  was  to  be  president,  an^  whoever  had  the  next 


86  COXSTITUTIONxlL    LAW    OF    THE    UX'ITED    STATES. 

The  electors  must  prepare  separate  lists  of  all  persons 
who  receive  any  votes  for  either  office,  must  subscribe  and 
certify  the  lists,  and  having  sealed  them  must  send  them, 
addressed  to  the  president  of  the  senate,  to  the  seat  of 
the  federal  government.  "  The  president  of  the  senate 
shall,  in  the  presence  of  the  senate  and  the  house  of 
representatives,  open  all  the  certificates  and  the  votes 
shall  then  be  counted."  A  i.iajority  of  the  votes  of  all  the 
electors  is  necessary  to  an  election.  If  none  of  the  can- 
didates for  the  presidency  has  received  such  a  majority, 
then  the  house  of  re])resentatives  must  elect  one  of  the 
three  candidates  wlio  received  the  greatest  number  of 
votes.  In  this  case  the  house  of  re])resentatives  votes  by 
states,  and  each  state  casts  one  vote.  The  ballot  holds 
good  if  one  or  more  members  from  two-thirds  of  the 
states  be  present.  A  majority  of  all  the  states  is  neces- 
sary to  an  election.'  If  no  vice-president  has  been  elected, 
the  senate  may  choose  one  of  the  two  candidates  who 
received  the  greatest  number  of  votes.  Each  senator 
casts  one  vote.  To  make  a  ballot  valid,  the  presence  of 
t\vo-thii-ds  of  the  senators  is  requii'cd.  For  an  election, 
the  majority  of  all  the  senators  is  necessary. - 

It  is  an  undisputed  fact  that  the  twelfth  amendment, 
which  contains  the  provisions  noted  above,  has  become  a 
mere  empty  form.  The  parties  nominate  their  candidates 
in  so-called  national  conventions,  which  have  no  legal  ex- 
highest  numlier  was  to  be  vice-president,  provided,  in  each  case,  that 
the  candidate  received  a  majority  of  all  the  votes  cast.  For  the  events 
of  the  election  of  1800-1801,  which  led  to  the  adoption  of  the  twelfth 
amendment,  see  my  Const  it  utiomil  History,  I.,  168. 

1  See  my  Constitutional  History  (II.,  4)  as  to  the  one  presidential 
election  (that  of  J.  Q.  Adam.s)  which  took  place  under  this  constitu- 
tional provision. 

2  Under  this  constitutional  provision,  R.  M.  Johnson  was  elected  in 
1837. 


THE   FEDERAL   CONSTITUTION.  87 

istence  whatever^  and  the  members  of  which  are  chosen 
without  any  legal  control  whatever.  It  has  long  been  a 
subject  of  constant  and  loud  complaint  that  not  the  mass 
of  the  people,  but  only  the  professional  politicians,  are 
represented  in  these  conventions.  In  the  interest  of  the 
managers,  public  opinion  is  often  defied.  The  electors 
are  mere  ornamental  figure-heads,  without  any  will  of 
their  own.  The  people  take  not  the  least  interest  as  to 
who  are  made  electors,  for  the  persons  designated  are  held 
to  be  in  honor  bound  to  vote  for  the  party  candidates 
nominated  by  the  national  convention.  Since  the  intro- 
duction of  these  conventions,  no  elector  has  ever  ventured 
to  act  as  the  constitution  intended,  in  accordance  with 
his  own  judgment.^  Not  only  in  regard  to  the  question 
as  to  which  party  shall  carry  the  day,  but  also  as  to  the 
persons  chosen,  the  election  of  electors  is  the  presidential 
election,  and  in  ordinary  conversation  it  is  so  called.  The 
assembling  and  voting  of  the  electoral  college  on  the  first 
Wednesday  in  December  is  an  empty  formality,  for  the 
decision  was  made  in  the  preceding  November.  The  de- 
velopment of  actual  facts  has  made  the  constitution  a  dead 
letter  on  this  point.-  The  history  of  the  presidential  elec- 
tion of  18T6-7T  shows  that  even  empty  forms  may  become 

1  So,  too,  in  former  times,  when  the  candidates  were  named  by  the  ^ 
party  representatives  in  congress,  the  so-called  "  king  caucus."  , 

2  Should  accident  so  shape  events  that  tlie  presidential  candidate  of 
the  victorious  party  should  die  immediately  before  the  meeting  of  the 
electoral  college,  then  the  United  States  would  again  have  a  president 
who  was,  not  only  in  form,  but  in  truth,  elected  by  the  electors.  The 
effects  that  such  an  accident  might  produce  are  incalculable.  The 
most  substantial  result  would  probably  be  the  final  success  of  the  ef- 
forts to  bring  the  constitution  again  into  accord  with  facts,  and  to 
have  the  president  and  vice-president  elected  directly  by  the  people. 
If  Horace  Greeley  had  been,  not  the  defeated,  but  the  victorious,  can- 
didate, the  constitution  by  his  death  in  1872  would  have  come  to  its 
rights. 


SS  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

of  great  significance.  The  after  effects  of  the  civil  war 
came  into  j^hiy  in  a  manner  that  threatened  to  be  fatah 
lu  some  of  the  former  slave  states  (Florida,  South  Caro- 
lina and  Louisiana),  both  parties  claimed  the  victory.  If 
the  electoral  votes  of  all  these  states  were  given  to  the 
republicans,  their  candidate  would  be  elected  by  a 
majority  of  one  vote.  But  to  whom  did  the  constitution 
give  the  right  to  decide,  if  the  legality  of  electoral  votes 
was  contested  ?  —  or  if  in  one  state  two  sets  of  electors 
should  eacli  claim  to  be  legally  chosen  i  The  clause  of  the 
constitution  already  cited  otfered  no  such  unquestionable 
solution  of  the  problem  that  the  most  dillerent  doctrines 
mio'ht  not  have  been  advanced  from  the  <j,"eneral  stand- 
point  of  pi'inciple  and  of  party  interests.  There  were  no 
precedents  to  indicate  so  precisely  any  ])articular  path 
that  congress  would  have  been  obliged  to  proceed  therein. 
The  position  which  congress  took  in  regai'd  to  the  elect- 
oral vote  of  Missouri  in  1821,  and  of  Michigan  in  1S3T, 
had  been  generally  understood  hitherto  as  involving  a 
claim  on  its  part  to  the  right  to  decide  the  validity  of  an 
electoral  vote  sent  into  it;  and  the  twenty-second  joint 
rule,  concerning  the  counting  of  electoi'al  votes  (which 
was,  however,  no  longer  in  force  in  1870),  was  also  based 
on  this  assum))tion.  In  1857  the  president  of  the  senate 
declared,  after  he  h^d  announced  the  election  of  Buchanan, 
that  he  did  not  feel  authorized  to  decide  whether  AVis- 
consin  had  voted  for  Fremont.  And  in  1873  contj^ress 
refused  to  count  the  electoral  vote  of  Louisiana,  on  ac- 
count of  fraud  in  the  election.  If  the  majority  in 
both  houses  had  now  taken  the  same  position,  the  minor- 
ity would  probaljly  have  been  voted  down  by  an  appeal 
to  precedent,  and  the  affair  would  have  been  settled.  But 
in  the  house  of  representatives  the  democrats,  and  in  the 
senate  the  republicans,  had  a  majority.     It  was  therefore 


THE  fp:dekal  constitution.  89 

to  be  expected  with  certainty  that  they  would  take 
directly  opposite  grounds.  The  doctrine  that  both  houses 
should  be  regarded  as  one  composite  body,  and  that  the 
majority  of  all  of  the  votes  should  decide,  found  not  the 
slightest  support  in  the  constitution.  Against  the  claim 
that  congress  was  capable  of  deciding,  the  very  impor- 
tant objection  was  raised,  that  the  constitution  provides 
only  that  the  certificates  shall  be  opened  and  counted  "  in 
the  presence  of  the  senate  and  house  of  representatives." 
All  the  other  provisions  indicate,  however,  an  intention 
to  assign  to  the  states  the  right  and  responsibility  of  tak- 
ing care  that  their  electors  shall  be  appointed  in  a  con- 
stitutional and  lawful  manner,  and  their  legal  votes  be 
properly  conveyed  to  the  president  of  the  senate.  The 
assertion  of  the  republicans,  that  the  decision  belonged 
to  this  official,  was  equally  untenable.  Nowhere  does  the 
constitution  empower  him  to  count  the  votes.  It  declares 
simply  that  they  "shall  be  counted," —  a  formula  which 
forces  us  to  suppose  that,  according  to  the  views  of  the 
framers  of  the  constitution,  the  question  was  one  simply 
of  addition.  The  claiih  of  the  democrats  that  the  de- 
cisive vote  must  be  accorded  to  the  house  of  representa- 
tives, because  eventually  the  election  of  the  president 
was  incumbent  upon  it,  was  not  a  bit  better  founded.  It 
was  evident  that  no  amicable  adjustment  would  be  at- 
tained, if  the  decision  of  the  question  were  delayed  until 
the  official  counting  of  the  electoral  votes.  In  harmony 
with  public  opinion,  the  most  thoughtful  leaders  of  both 
parties  wished,  however,  to  avoid  the  great  commotions 
which  would  have  been  inevitable  if  the  question  were 
not  decided  before  the  beginning  of  the  new  presidential 
period,  Eefuge  was  therefore  taken  in  an  expedient 
which  certainly  cannot  be  called  unconstitutional,  but 
must  be  described  as  extra-constitutional.  It  could  scarcely 


90  CONSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

be  resorted  to  again.  A  law  was  enacted,  the  essential 
provisions  of  which  were  as  follows:  If  a  state  had  sent 
in  only  one  retnrn  of  the  electoral  votes,  it  should  not  be 
rejected  unless  both  houses  should  so  decide;  if  two  re- 
turns were  sent  in,  these,  together  with  all  documents 
relating  to  them,  should  be  referred  to  a  commission  of 
fifteen  members;  each  house  named  five  mem])ers  of  this 
commission;  the  law  made  four  designated  justices  of  the 
supreme  court  members,  and  these  four  were  to  select 
anotlier  justice  of  the  supreme  court  as  the  fifteenth 
member;  the  decision  of  this  commission  was  to  be  final, 
unless  set  aside  by  a  concurrent  resolution  of  both  houses; 
an  a])peal  to  the  courts  was  not  forbidden.  The  repub- 
lican candidate,  Hayes,  was  installed  in  office  under  this 
law.  The  democrats  accommodated  themselves  to  cir- 
cumstances, but  adhered  to  the  view  that  Tilden  was  the 
legally  elected  president.  The  manifold  efforts  to  render 
the  recurrence  of  such  an  event  impossible,  by  amending 
the  constitution  or  enacting  proper  laws,  have  not  thus 
far  as  yet  led  to  the  desired  result. 

§  20.  The  "  Cabinet."  The  constitution  knows  noth- 
ing of  a  "  cabinet."  Even  if  the  woi'd  has  become  as 
thorouii'hlv  naturalized  in  the  lan^uao'e  of  ximerica  as  in 
European  states,  it  is  nevertheless,  from  a  constitutional 
standpoint,  an  abuse.  The  constitution  speaks  only  of 
"executive  departments."  It  does  not  call  the  heads  of 
them  ministers.  It  generally  gives  them  no  titles.  By 
statute,  the  name  "  secretary  "  is  given  them.  Collect- 
ively, tlie  secretaries  have  no  constitutional  existence 
Avhatever.  One  of  the  two  clauses  of  the  constitution  in 
which  they  are  mentioned  shows,  however,  that  the 
framers  intended  to  give  the  ])resident,  in  the  secretaries, 
not  only  executive  organs  of  his  will,  but  also  counselors 
upon  whose  official  counsel  he  might  rest  his  acts  and 


THE   FEDEKAL   CONSTITUTION.  91 

• 

deeds  —  not  legally,  but  morally  and  politically  —  when 
they  Avere  questioned  by  congress  or  the  people.  The 
president  is  authorized  to  "  require  the  opinion  in  writing 
of  the  principal  officer  in  each  of  the  executive  depart- 
ments upon  any  subject  relating  to  the  duties  of  their 
respective  offices."  Art.  II.,  sec.  2,  §  1.  The  express 
grant  of  such  a  power  in  the  fundamental  law  of  the  state 
means  something  only  when  thus  interpreted.  It  is, 
therefore,  certainly  not  in  opposition  to  the  spirit  of  the 
constitution  if  the  secretaries  have  been  more  and  more 
fused  into  a  ministry  which,  as  a  whole,  advises  the  presi- 
dent, so  that  his  personal  policy  expands  into  the  policy 
of  tlie  administration.  But  even  if  this  is  regarded  not 
simply  as  permissible,  but  also  as  self-evident  and  neces- 
sary, still  the  president  can  never  shield  himself  by  an 
appeal  to  a  resolution  of  his  so-called  cabinet.  It  is  not 
opposed  to  the  spirit  of  the  constitution,  and  it  is  an  irre- 
pressible demand  of  modern  government  that,  while  the 
})resident  resolves  upon  many  things  in  his  cabinet,  he 
alone  —  not  the  cabinet  —  concludes,  ^.  «.,  decides.  The 
political  responsibility  of  each  secretary  extends  beyond 
the  limits  of  his  own  department,  because  he  has  volun- 
tarily incurred  a  moral  responsibility  for  the  general 
character  of  the  president's  policy  by  sitting  as  a  mem- 
ber of  the  cabinet.  But,  as  the  president  possesses  the 
sole  right  of  decision,  he  cannot  throw  upon  his  cabinet 
his  legal  or  political  responsibility.  As  he  can  seek  sup- 
port in  the  opinion  of  each  secretary  about  that  official's 
own  department,  so  he  can  seek  it,  by  getting  the  opinion 
of  all  the  secretaries  together,  about  his  general  policy ; 
but  he  cannot  put  his  cabinet  in  the  place  which  the  con- 
stitution reserves  for  him.  Because  his  position  in  rela- 
tion to  the  cabinet  is  completely  free,  while  as  to  the 
single  minister  it  is  limited  by  law,  it  is  so  much  the  more 


02  C.»:CSTITrTIONAL    LAW    OF   THE    UNITED    STATES. 

Lis  duty  to  maintain  with  zealous  care  the  constitutional 
rchition  —  one  which  utterly  excludes,  according  to  its 
fundamental  idea,  a  cabinet  in  the  sense  of  those  of 
tlie  constitutional  states  of  Europe.  The  constitution 
presupposes  the  existence  of  different  "executive  depart- 
ments.*' These  were,  however,  first  created  by  law,  and 
by  law  the  duties  and  rights  of  all  the  secretaries  have 
been  accurately  defined.  The  president  decides  for  him- 
self what  he  shall  propose  to  his  cabinet,  how  he  shall 
count  and  weigh  its  votes,  and  to  what  degree  he  shall 
permit  its  counsels  to  influence  his  own  decision.  The 
secretaries  are  not  (as  executive  officers)  unconditionally 
subject  to  the  will  of  the  president.  They  are  actual 
heads  of  de})artnients,  and  that  not  because  it  has  so 
pleased  the  president,  or  "by  force  of  circumstances,  but 
because  the  law  has  made  them  such.  The  cabinet  is,  so 
to  speak,  only  an  inner  chamber  of  the  administration. 
Circumstances  and  the  character  of  the  president  may 
permit  it  to  attain  great  practical  importance,  but  an 
official  action  of  any  kind  whatever  by  the  cabinet,  as  a 
body,  seems  impossible,  as  long  as  the  whole  political 
structure  of  the  executive  power  is  not  subjected  to  a 
change  in  its  principles  such  as  could  be  effected  only  by 
a  constitutional  amendment.  The  fundamental  character 
of  the  present  relation  between  the  president  and  con- 
gress is  that  they  stand  side  by  side.  A  cabinet,  in  the 
European  sense  of  the  term,  would  be  justified,  and  its 
existence  rendered  possible,  only  when,  in  place  of  this 
relation,  a  far  more  intimate  and  organic  union  of  the 
executive  and  legislature  had  been  brought  about.  The 
introduction  of  a  parliamentary  government  must  not  be 
thought  of.  That  would  put  the  entire  constitution  upon 
perfectly  new  bases.  The  administration  could  not  be 
conducted  in  the  name  of  a  president  and  under  the  name 


THE    FEDERAL   CONSTITUTION.  *  93 

of  a  cabinet  by  a  committee  of  the  law-making  power. 
As  before  stated,  the  executive  must  be  an  independent 
and  co-ordinate  factor  of  government,  and  the  bearer  of 
this  executive  power  must  be  president,  not  merely  in 
form  but  in  fact.     The  constitution  grants  the  senate  a 
right  of  control  over  the  appointment  of  the  secretaries, 
inasmuch  as  it  requires  the  senate's  confirmation  of  the 
president's  nominations.     But  it  would  be  a  grievous  sin 
against  the  spirit  of  the  constitution  if  the  senate  were  to 
misuse  this  right  of  confirmation  so  as  to  compel  the  presi- 
dent to  appoint  a  particular  person,  or  even  a  man  in 
political  accord  with  the  majority  of  the  senate.     The 
provisions  of  the  constitution  as  to  the  time  of  election, 
the  method  thereof,  and  the  terms  of  oflBce,  of  president, 
senators   and   representatives,  leave  no  doubt  that  the 
framers  of  the  constitution  did  not  consider  political  har- 
mony between  the  president  and  congress,  or  between 
the  president  and  one  of  the  two  houses,  as  a  matter  of 
necessity.     As  the  president  is  responsible  for  the  admin- 
istration, it  is  self-evident  that,  so  far  as  political  views 
do  and  must  come  into  consideration  in  choosing  the  cab- 
inet, those  of  the  president  must  prevail.     In  theoretical 
discussions,  as  well  as  in  political  struggles  between  the 
executive  and  the  legislative  powers,  the  view  has  always 
obtained  that  the  constitution  gave  the  president  full 
liberty  to  remove  the  secretaries.^     The  political  school 

1  The  conflict  between  Andrew  Johnson  and  congress  led  to  the  en- 
actment of  the  tenure-of -office  act  of  March  2,  1867,  which  related  to 
all  the  civil  officials  appointed  by  the  president  with  the  consent  of 
the  senate.  But  its  main  object  was  to  compel  the  president  to  retain 
in  office  the  secretaries  who,  in  full  accord  with  the  majority  of  con- 
gress, were  the  bitterest  opponents  of  his  policy  towards  the  rebel 
states.  In  my  opinion,  party  passion  alone  dare  dispute  that  congress, 
by  the  passage  of  this  law,  became  guilty  of  the  boldest  usurpation 
and  of  gross  viol.ition  of  the  true  intent  of  the  constitution.    Barely 


9-i  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

which  treats  constitutional  and  parliamentary  govern- 
ment as  identical  ideas  will  not  find,  in  the  constitution 
of  the  greatest  and  freest  republic  of  all  time,  the  slight- 
est support  for  its  doctrine.  But  although  a  parliament- 
ary government  is  absolutely  excluded  by  the  funda- 
mental ideas  of  the  constitution,  yet  for  several  years 
past  the  question  has  been  discussed  with  increasing  inter- 
est, whether  the  executive  power,  by  law  or  constitutional 
amendment,  should  not  be  brought  into  closer  communi- 
cation with  the  legislative,  so  that  its  measures  and  views 
could  be  openly  and  directly  rei)rcsented  in  Ijoth  houses 
of  congress  b}"  the  secretary  of  the  department  concerned. 
That  the  development  of  affairs  is  tending  in  this  direc- 
tion, congress  has  frequently  been  com],elled  to  acknowl- 
edge, at  least  indirectl\%  for  the  secretaries  furnish  it  the 
materials  for  manv  of  its  legislative  labors.  Its  commit- 
tees are  not  satisfied  with  the  written  information  ob- 
tained, and  so  summon  the  secretaries,  in  order  to  obtain 
the  desired  information  by  oral  discussions.     Thus,  finally, 

had  Grant  become  president  than  the  most  objectionable  provisions 
were  repealed  by  a  new  act  of  April  5,  1869.  This  is  so  framed  that 
it  can  scarcely  be  declared  to  be  unconstitutional.  But  the  tendency 
to  extend  the  constitutional  authority  of  the  senate  glimmers  even 
through  this.  Congress  is  unquestionably  authorized  to  regulate  by 
law  the  right  of  dismissal.  Such  a  regulation  in  regard  to  adminis- 
trative officials  is  urgently  needed.  An  unqualified  right  of  dis- 
missal, conditioned  only  upon  the  senate's  assent,  should  certainly  not 
be  accei)ted  as  such  a  legal  regulation.  As  for  the  offices  of  a  politi- 
cal character,  the  nature  of  things  forbids  bringing  them  into  such  a 
scheme.  If  the  constitution  had  intended  to  confer  on  the  senate  a 
right  of  control  over  dismissals  from  them,  it  would  have  declared  it 
as  expressly  as  it  does  the  senate's  control  over  appointments.  But, 
as  to  all  other  offices,  the  welfare  of  the  state  demands  a  limitation 
of  the  arbitrary  power  of  dismissal  exercised  by  the  constantly  chang- 
ing political  chiefs.  The  clause  just  mentioned  of  the  act  of  April  5. 
1869,  simply  coupjes  the  ai'bitrary  will  of  the  president  and  the  arbi- 
trary will  of  the  senate. 


THE    FEDERAL   CONSTITUTION.  95 

many  proposed  laws,  Avhich  officially  have  an  entirely  dif- 
ferent paternity,  are  prepared  in  some  bureau  of  the  ad- 
ministration. But  congress  is  too  well  aware  of  how  very 
much  the  position  of  the  executive  would  be  strengthened, 
as  against  itself,  if  the  secretaries  received  the  right  of 
debate  in  senate  and  house,  and  its  tendency  is  too  de- 
cided to  elevate  its  own  dignity  and  enlarge  its  own 
sphere  of  action  at  the  cost  of  the  executive,  to  permit 
those  who  perceive  in  such  a  change  one  of  the  most 
urgent  and  significant  reforms  to  hope  that  their  views 
may  soon  come  to  pass.  But  while  the  relation  of  the 
executive  to  the  legislative  power  constitutes  one  of  the 
greatest  differences  between  the  political  institutions  of 
the  United  States  and  those  of  all  European  constitutional 
nations,  and  probably  will  do  so  for  a  long  time,  the  or- 
ganization of  the  "  administration "  in  America,  and  of 
the  "government"  in  Europe,  is  in  the  main  similar,  and 
will  become  more  so  with  the  progressive  development  of 
the  United  States.  Originally  there  were  only  four  de- 
partments :  that  of  state  (foreign  affairs),  of  the  treasury 
(finances),  of  w^ar,  and  of  justice  (attorney-general).  In 
1794  the  postoffice  department  (postmaster-general)  was 
added;  in  1798  the  navy  department,  and  in  1849  the 
department  of  the  interior.^ 

1  By  act  of  May  15,  1863,  an  agricultural  department  was  also  cre- 
ated. But  its  head  is  only  a  "  commissioner."  He  is  subject  to  none 
of  the  secretaries,  but  is  not  a  member  of  the  "  cabinet." 

By  act  of  March  2,  1867,  there  was  created  within  the  department 
of  the  interior  an  "office  of  education,"  also  administered  by  a 
"  commissioner."  The  suggestion  has  already  been  made  to  change 
this  bureau  into  an  independent  department,  but  there  is  no  imme- 
diate prospect  of  this  and  possibly  no  necessity  for  it,  since  the  school- 
system  is  a  matter  for  the  states. 

Only  the  most  important  points  of  the  organization  and  work  of 
the  departments  can  be  sketched  here. 

*  The  state  department  is  not  simply  the  ministry  of  foreign  affairs. 
The  secretary  of  state  is  also  keeper  of  the  great  seal,  and  in  the 


90  COXSTITLTIONAL    LAW    OF    THE    UNITED    STATES. 

§  27.  The  Federal  Courts.  The  constitution  estab- 
lishes only  the  supreme  court  of  the  United  States  and 
makes  it  the  duty  of  congress,  according  to  the  changing 
necessities  of  the  times,  to  create  and  organize  such  in- 
ferior courts  as  it  shall  see  proper.  To  be  eligible  for 
appointment  to  the  office  of  justice  in  the  United  States 

archives  of  this  department  the  original  records  of  the  laws,  of  all 
resolutions  of  congress,  etc.,  are  preserved.  Tlie  publication  of  the 
laws  (in  three  newspapers),  and  the  proclamation  of  an  adoption  of 
an  amendment  to  the  constitution,  are  among  the  secretarj'  of  state's 
functions.  The  fact  deserves  especial  mention,  that  he  is  legally 
bound  to  present  congress  annually  with  a  concise  report  of  the 
changes  made  by  other  countries  in  their  commercial  and  domestic 
policies.  He  has  as  aids  a  first  and  second  assistant  secretary  of  state, 
who  are  appointed  by  the  president,  subject  to  the  consent  of  the 
senate. 

Tlie  treasury  department  more  than  any  of  the  others  was  from 
the  beginning  brought  into  a  legal  relation  witli  congress,  independ- 
ent of  the  president.  And  as  to  this  department  it  was  admitted 
from  the  beginning  that  congress,  in  its  legislation,  could  not  do 
without  executive  co-operation.  The  very  act  of  organization  of 
September  2,  1789,  provides:  "That  it  shall  be  the  duty  of  the  sec- 
retary of  the  treasury  to  digest  and  prepare  plans  for  the  improve- 
ment and  management  of  the  revenue,  and  for  the  support  of  the 
public  credit,  ...  to  make  report,  and  give  information,  to 
either  branch  of  the  legislature  in  person  or  in  writing  (as  he  may 
be  required)  resjiecting  all  matters  referred  to  him  by  the  senate  or 
house  of  representatives  or  which  shall  appertain  to  his  office." 
Stats,  at  Large,  I.,  65,  66.  An  act  of  May  10,  1800,  further  pro- 
vides :  "  That  it  shall  be  the  duty  of  the  seci-etary  of  the  treasury  to 
digest,  prepare  and  lay  before  congress,  at  the  commencement  of 
every  session,  a  report  on  the  subject  of  finance,  containing  estimates 
of  the  public  revenue  and  public  expenditures,  and  plans  for  improv- 
ing or  increasing  the  revenues,  from  time  to  time,  for  the  purpose  of 
giving  information  to  congress  in  adopting  modes  of  raising  the 
money  requisite  to  meet  the  public  expenditures."  Ibid.,  II.,  79,  80. 
Among  the  reports  which  the  secretary  UTust  annually  lay  before 
congress  are  particularly  to  be  mentioned  those  prepared  by  the 
bureau  of  statistics  "  on  the  statistics  of  commerce  and  navigation  " 
(act  of  February  10,  1820,  Ibid.,  III.,  541),  and  "  upon  the  condition 
of    the  agriculture,   manufactui-es,   domestic  trade,   cun-ency    and 


TUE    FEDERAL   CONSTITUTION.  97 

supreme  court  requires  no  particular  qualifications,  ac- 
cording to  the  constitution.  It  provides  only  that  the 
members  of  the  supreme  court  shall  be  appointed  by  the 
president,  with  the  advice  and  consent  of  the  .senate.  In 
regard  to  the  other  federal  judges,  this  is  not  expressly 
required,  but  the  fact  that  congress  has  not  reckoned 

banks  of  the  several  states  and  territories"  (June  15,  1844,  Ibid.,  V., 
719),  and  a  summary  of  the  exports  and  imjKjrts  of  the  past  fiscal 
year  (July  1  to  June  30),  Every  three  months  a  reiwrt  of  the  ex- 
penditures and  revenue,  and  once  a  month  a  report  of  the  condition 
of  the  treasury  during  the  last  week  of  the  month,  must  be  published 
(June  17,  1844,  Ibid.,  V.,  696).  The  accounts  are  examined  by  six 
auditors,  above  whom  two  comptrollers  are  placed  in  charge.  The 
moneys  are  received  and  paid  out  by  the  treasurer.  Payments  are 
made  on  vouchers  of  the  treasurer,  countersigned  by  a  comptroller 
and  entered  by  the  registrar.  A  commissioner  of  customs  has  charge 
of  the  revenue  arising  from  custom  duties.  The  system  of  internal 
taxation  is  managed  by  a  commissioner  of  internal  revenue.  Among 
the  other  officials  of  the  department,  the  director  of  the  mint  and  the 
comptroller  of  the  currency  may  be  mentioned. 

The  most  important  officers  of  the  war  department  are  the  adju- 
tant-general, quartermaster-general,  paymaster-general,  commissary- 
general,  surgeon-general,  judge-advocate-general,  chief  of  engineers 
and  chief  of  ordnance.  It  is  odd  that  the  signal  service  also  (chief 
signal  officer)  is  placed  under  the  war  department,  although  its  main 
object  is  to  give  information  by  telegram  and  by  signals,  for  the  ben- 
efit of  agricultural  and  commercial  interests,  of  the  approach  and 
force  of  storms,  by  means  of  observations  taken  at  fixed  meteorolog- 
ical stations. 

The  department  of  justice  consists  of  an  attorney-general,  solicitor- 
general,  two  assistant-attorneys-general,  solicitor  of  the  treasury, 
solicitor  of  internal  revenue,  naval  solicitor,  and  an  examiner  of 
claims  for  the  state  department.  In  the  separate  judicial  districts, 
legal  matters  are  attended  to  by  a  district  attorney.  Tlie  executive 
officers  are  called  marshals.  ("  The  marshals  and  their  deputies  shall 
have,  in  each  state,  the  same  powers,  in  executing  the  laws  of  the 
United  States,  as  the  sheriffs  and  their  deputies  in  such  state  maj' 
have,  by  law,  in  executing  the  laws  thereof."    Rev.  Stat.,  sec,  788.) 

In  respect  to  the  postoffice  department,  it  need  only  be  said  that 
on  account  of  the  great  number  of  postmasters  necessarily  appointed, 
7 


98  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

tliem  among  the  "  inferior  officers,"  the  appointment  of 
which  it  may  commit  "to  the  president  alone,  to  the 
courts,  or  to  the  heads  of  departments,"  is  unquestionably 
in  harmony  with  the  intent  of  the  constitution.  This 
appears,  too,  from  the  fact-  that  none  of  the  federal 
judges,  without  exception,  according  to  the  constitution, 
can  be  removed  from  office  during  good  behavior.^     The 

the  department,  under  the  *'  spoils "  principle,  has  reached  a  com- 
manding importance  in  party  politics,  with  which,  so  far  as  its  legiti- 
mate duties  are  concerned,  it  should  have  no  connection. 

The  navy  department  is  divided  into  eight  "bureaus:"  yards  and 
docks;  navigation  (combined  with  a  "  hydrographic  office");  ord- 
nance; provisions  and  clothing;  medicine  and  surgery;  equipment 
and  recruiting ;  construction  and  repair ;  and  steam  engineering.  The 
heads  of  the  bureaus  must  be  chosen  from  particular  ranks  of  the 
officers  of  the  navy. 

The  duties  of  the  interior  department  are  the  most  extensive  and 
comprise  the  most  different  objects :  (1)  census ;  (2)  public  lands :  (3)  In- 
dian affairs;  (4)  patents;  (5)  bureau  of  education;  (6)  the  geological 
surveys ;  (7)  pensions,  a  branch  which,  since  the  civil  war,  and  partic- 
ularly of  late  years,  has  attained  vast  importance  by  reason  of  sweep- 
ing legislation ;  in  the  fiscal  year  1883-84,  $.j5,429,228  were  paid  out 
for  pensions,  more  than  one  dollar  per  capita  of  the  population; 
(8)  preservation  and  distribution  of  the  government's  publications. 

The  business  of  the  department  of  agriculture  is  "to  acquire  and 
diffuse  among  the  people  of  the  United  States  useful  information  on 
subjects  connected  with  agriculture  in  the  most  general  and  compre- 
hensive sense  of  that  word,  and  to  procure,  propagate  and  distribute 
among  the  people  new  and  valuable  seeds  and  plants."  Rev.  Stat., 
sec.  520.  See  W.  Elmes,  Executive  Departments  of  the  U.  S.  Govern- 
ment, Washington,  1879. 

1  Territorial  judges  are  not  federal  judges  within  the  meaning  of 
article  III.,  section  1.  Although  the  inferior  federal  courts  within 
the  states  are  first  created  by  law,  they  are  nevertheless  "constitu- 
tional" courts,  i.  e.,  they  are  made  by  this  article  co-bearers  of  the 
judicial  power  of  the  United  States.  The  territorial  courts,  on  the 
other  hand,  are  "  legislative,"  /.  e.,  they  were  created  by  congress, 
not  by  virtue  of  this  coxistitutional  provision,  but  by  virtue  of  its 
own  general  legislative  power  over  the  territories.  American  Insur- 
ance Co.  vs.  Canter,  Peters,  I.,  346.     I  know  of  no  judicial  decision 


THE   FEDERAL   CONSTITUTION.  99 

constitution  does  not  fix  the  number  of  members  of  the 
United  States  supreme  court.  The  great  act  of  Septem- 
ber 24,  1T89,  which  filled  in  the  outline  drawn  by  the 
constitution  on  this  subject,  provided  that  it  should  be 
composed  of  one  chief  justice  and  five  associate  justices. 
By  the  act  of  April  29, 1802,  a  sixth  associate  justice  was 
created,  and  an  act  of  March  3, 1837,  increased  their  num- 
ber to  the  present  figure  of  eight.'  To  decide  a  case  six 
justices  must  be  present.^  The  act  of  1789  created  thir- 
teen district  courts  with  one  judge  each  and  three  circuit 
courts.  The  latter  form  the  courts  of  first  appeal.  Their 
organization  has  been  modified  in  the  course  of  years. 
There  are  now  nine  circuits.  One  is  assigned  to  each 
justice  of  the  supreme  court.  Every  circuit  has,  besides, 
its  own  circuit  judge,  and  finally  every  district  judge, 
within  certain  limitations,  can  exercise  the  office  of  cir- 
cuit judge.''  Each  one  of  these  judges  may,  alone  or  in 
common  with  one  of  the  two  other  judges,  hold  circuit 
court,  and  therefore  in  different  parts  of  the  same  district 
there  may  be  held  simultaneously  different  circuit  courts. 

as  to  whether  the  removal  of  a  federal  judge  by  abolishing  his  office 
is  constitutional.  During  the  presidency  of  Jefferson,  congress 
claimed  this  right,  and  some  of  the  states  have  adopted  the  same 
course  in  regard  to  irremovable  judges. 

1  It  seems  doubtful  whetlier  an  attempt  will  be  made  to  allay  the 
increasing  clamor  concerning  the  extraordinary  over-burdening  of 
the  supreme  court,  by  a  further  increase  of  the  number  of  asso- 
ciate justices.  Manifold  attempts  have  been  made  to  find  a  good 
way  out  of  the  present  wretched  state  of  things,  but  more  or  less 
weighty  objections  have  hitherto  been  made  to  each  plan  proposed. 

^  The  term  of  the  supreme  court  does  not  correspond  with  tlie  cal- 
endar year.  Its  commencement  has  been  repeatedly  changed.  By 
act  of  July  23,  1866,  it  was  fixed  for  the  second  Monday  in  October. 
Originally  the  court  was  required  to  hold  two  sessions  a  year.  This 
provision  was  repealed  by  act  of  April  29,  1802.  These  facts  should 
be  considered  if  mistakes  in  the  year  of  a  judicial  decision  are  to  be 
avoided. 

SActof  April  10,  1869. 


100         COXSTITUTIOXAL    LAW    OF    THE     UNITED    STATES. 

The  number  of  district  judges  has  increased  to  one  hun- 
dred and  sixteen.  By  act  of  Februar}^  24, 1S55,  the  court 
of  claims  was  created.^ 

RIGHTS.  PRIVILEGES  AND  LIMITATIONS  OF  THE  FEDERAL 
POWERS  AND  OF  THE  SEPARATE  [MEMBERS  THEREOF. 

§  28.  Congress.  The  constitution  e.xpressls'  grants  to 
both  houses  of  congress  the  autonomy  which  in  all  con- 
stitutional states  is  deemed  a  necessary  prerequisite  of 
legislative  l)odies.  Before  all, '•  each  house  shall  l^e  tlie 
judge  [of  the  validity]  of  the  elections,  returns  and  qual- 
ifications of  its  own  members"  (art.  I.,  sec.  5,  §  1).-     It 

iThe  orp;anizatioii  of  the  court  of  claims  was  altered  by  act  of 
March  3,  1863.  It  is  at  present  composed  of  a  chief  justice  and  four 
associate  judges,  but  only  two  are  necessary  to  decide  a  case.  The 
court  sits  in  Washington.  The  annual  session  begins  on  the  first 
Monday  in  December  and  continues  till  the  cases  before  the  court  aie 
disposed  of.  The  following  two  provisions  contain  the  most  essen- 
tial features  in  i-egard  to  its  authority:  It  is  empowered  "to  hear 
and  determine  all  claims  founded  upon  any  law  of  congress,  or  upon 
any  regulation  of  an  executive  department,  or  upon  any  contract, 
expre-sed  or  implied,  with  the  government  of  the  United  States,  and 
all  claims  which  may  be  referred  to  it  by  either  house  of  congress,"' 
and  "all  set-offs,  counter-claims  for  damages,  whether  liquidated  or 
unliquidated,  or  other  demands  whatsoever,  on  the  part  of  the  gov- 
ernment of  the  United  States  against  any  person  making  claim 
against  the  government  in  said  court."  Although  the  court  must  in 
all  these  cases  "  decide,"  yet  it  has  been  claimed  in  the  house  of  rep- 
resentatives that  congress  could  set  aside  these  decisions,  inasmuch 
a-s  it  could  refuse  to  make  appropriations  to  pay  the  judgments 
against  the  United  States.  The  house  adopted  the  motion  of  Wash- 
burne.  of  Illinois,  who  supported  this  claim,  but,  neither  from  the 
motion  itself,  nor  from  the  brief  debates,  does  it  appear  whether  the 
house  pledged  itself  to  this  undoubtedly  untenable  view.  See  Confj. 
Globe,  2d  sess.  38th  Cong.,  306.  Appeals  from  the  court  of  claims  go 
to  the  supreme  court.  See  W.  A.  Richardson,  History,  Jurisdiction 
and  Practice  of  the  Court  of  Claims,  Washington,  1883. 

-The   "returns"'   or   "certificates  of    election"   are   regarded   as 


THE    FEDERAL   CONSTITUTION.  101 

is  the  province  of  each  house  to  fix  its  own  order  of  busi- 
ness, but  the  constitution  makes  a  majority  of  all  the 
members  elected  necessary  to  do  any  business.  A  less 
number  may  adjourn  from  day  to  day.  In  order  that 
their  labors  may  not  be  brought  to  a  standstill,  either  by 
indifference  or  evil  intent,  the  appearance  of  the  absent 
members  can  be  enforced  in  the  manner  provided  and 
under  penalty  of  the  punishments  imposed  by  the  re- 
spective houses.  The  power  to  fix  the  order  of  business 
naturally  implies  the  power  to  invest  the  chairman  with 
the  necessary  disciplinary  power  to  maintain  order  dur- 
ing the  sessions.  When  it  is  further  provided  that  each 
house  may  "  punish  its  members  for  disorderly  conduct," 
it  is  of  course  evident  that  something  more  is  intended 
and  a  wider  authority  bestowed.  This  becomes  entirely 
certain,  when  finally  the  right  is  expressly  given  them  to 

"prima  facie  evidence  "  of  a  legal  election,  and  a  further  investiga- 
tion takes  place,  as  a  rule,  only  when  the  opposing  candidate  contests 
the  election.  If  a  seat  in  the  house  of  representatives  be  contested, 
the  contestant  must  notify  his  opponent  within  a  fixed  period  of  time, 
and  inform  him  in  the  way  prescribed  by  law  that,  and  upon  what 
grounds,  he  intends  to  make  the  contest.  The  two  parties  must  then 
themselves  take  measures  to  get  the  testimony.  Ninety  days  are 
gi'anted  them  within  which  to  do  i?o.  The  depositions  of  the  wit- 
nesses are  sent  to  the  house.  See,  more  fully.  Rev.  Stat,  sees.  105- 
130.  See,  al?o,  F.  C.  Brightly,  A  Collection  of  Leading  Cases  in  the 
Law  of  Elections  in  the  United  States,  Phila.,  1871;  D.  A.  McKnight, 
Electoral  System  of  the  United  States,  Phila.,  1878;  D.  C.  McMillan, 
Elective  Franchise  in  the  United  States,  N.  Y.,  1878 ;  G.  W.  McCrary, 
American  Law  of  Elections,  2d  ed.,  Chicago,  1880:  F.  Giauque, 
United  States  Election  and  Naturalization  Laws,  Cm.,  1880. 

The  idea  of  "qualifications"  was  considerably  enlarged  by  the 
civil  war  and  by  the  third  section  of  the  fourteenth  amendment, 
already  cited.  By  the  act  of  July  3,  1862,  nil  federal  officials  were 
obliged  to  swear  that  they  had  in  no  manner  whatever  voluntarily 
taken  part  in  the  rebellion.  This  "  test  oath  "  was  repealed  in  May, 
1884. 


UNIVERSITY  OF  CALIFORNIA 
RIVERSIDE 


102  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

"  expel  a  member "  by  a  two-thirds  vote  (art  I.,  sec.  5, 
§  2).  In  times  of  very  great  excitement,  it  has  neverthe- 
less been  asserted  that  all  these  provisions  give  each  house 
only  a  power  over  its  members  which  is  discii)linary  in 
the  strict  sense  of  the  word,  and  therefore  can  be  put  in 
force  only  as  to  improper  acts  committed  during  the  ses- 
sions.' Since  there  has  been  repeated  occasion  to  take 
steps  against  members  of  each  house  under  each  of  these 
two  clauses,  and  since  the  majority  has  never  taken  this 
standpoint,  it  may  now  be  regarded  as  finally  settled  that 
that  interpretation  is  correct  which  is  the  broader,  and 
at  the  same  time,  according  to  ordinary  speech,  unques- 
tionably the  more  natural  one.  Both  houses  of  congress 
must  have  been  granted  every  power  needed  to  guard 
themselves  and  their  members  against  any  impropriet}'^ 
on  the  part  of  a  member  and  to  preserve  their  dignity 
and  reputation  among  the  people.  It  is  wholly  for  them 
to  say  what  conduct  they  are  to  regard  as  dishonorable 
enough  to  require  expulsion.^  An  appeal  from  their  de- 
cision lies  only  to  the  court  of  public  opinion,  a  court 
which  brings  in  its  verdict  at  the  elections.  What  other 
punishments  tlie  houses  may  impose  upon  members  is, 
on  the  other  hand,  a  question  which  has  never  had  an 
exact  and  unquestioned  answer  and  never  can  have.  Al- 
though the  power  is  in  form  unconditional,  it  was  cer- 
tainly not  intended  to  be  unlimited.  Custom  has  confined 
all  punishments  imposed  to  those  not  inconsistent  Avith 
personal  dignity,  and  this  corresponds  to  the  intention  of 
the  constitution. 

^See  my  Constitutional  History,  V.,  324. 

2  The  misconduct  need  not  be  legally  punishable.  See  the  case  of 
Senator  W.  Blount,  in  1797.  Stoiy,  §  838.  Nor  need  it  have  been 
committe  1  during  the  session  of  congress  or  at  the  seat  of  govern- 
ment. 


THE    FEDERAL   CONSTITUTION.  103 

The  congressional  power  of  punishment  is  not  limited 
to  members  of  the  two  houses,  although  the  constitution 
contains  no  further  provision  on  this  point.  The  exten- 
sion of  the  power  rests  upon  the  fact  that  both  houses 
exercise  judicial  functions  in  certain  cases,  and  by  the 
common  law  every  court  has  the  power  of  punishment, 
in  order  to  protect  itself  against  insult,  contempt  and  dis- 
obedience. The  supreme  court  decided,  in  Kilhourn  vs. 
Thompson  (103  U.  S.,  168;  Otto,  XIII.),  that  the  lower 
house  may  punish  a  contumacious  witness  whom  it  has 
summoned  in  reference  to  an  impeachment  or  other  mat- 
ter which  falls  under  one  of  the  provisions  of  the  consti- 
tution.^ On  the  other  hand,  it  has  decided  that  the 
constitution  granted  neither  house  the  right  of  punish- 
ment simply  "  for  contempt."  Whether  the  right  existed 
in  other  cases  than  those  enumerated,  it  did  not  care  to 
decide  on  this  occasion,  but  it  laid  down  the  general  prin- 
ciple that  it  could  never  exist  when,  as  in  the  case  before 
it,  the  house  had  overstepped  its  constitutional  jurisdic- 
tion.2    The  extensive  disciplinary  and  penal  powers  of 

1  This,  of  course,  applies  also  to  the  senate. 

2  Kilbourn  had  been  committed  to  prison  because  he  refused  to  pro- 
duce his  business  account-books  and  correspondence. 

As  important  as  this  decision  is,  it  does  not  clear  up  all  doubt  on 
this  question.  And  the  question  is  of  great  importance  in  both  prin- 
ciple and  practice.  Thus  it  leaves  it  doubtful  whether  the  house  of 
representatives  of  1832  was  authorized  to  have  Samuel  Houston 
an-ested  by  its  sergeant-at-arms,  brought  before  its  bar  and  censured, 
because  he  had  beaten  Stanberry,  of  Ohio,  on  the  public  street,  on 
account  of  a  speech  delivered  by  Stanberry  in  the  house.  See  Ben- 
ton's Abridgment  of  the  Debates  of  Congress,  II.,  pp.  644-660  and  663- 
689.  In  a  much  older  decision  (1821).  in  Anderson  I's.  Dunn  (Wheaton, 
VI.,  204-235),  the  supreme  court  has  undoubtedly  recognized  the  right 
of  the  house  of  representatives  to  punish  a  "  breach  of  its  privileges" 
by  arrest,  censure  and  imprisonment,  but  not  beyond  the  close  of  the 
session,  and  if  the  beating  and  unjustifiable  imprisonment  of  the 


lOi  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

both  houses  over  their  respective  members  are  counter- 
balanced by  the  far-reaching  immunity  granted  the  mem- 
bers as  to  all  other  courts  and  public  authorities  by  the 
next  section,  the  sixth.  The  clauses  in  point  are:  The 
senators  and  representatives  "shall  in  all  cases  be  priv- 
ileged from  arrest" — treason,  felony  and  breach  of  the 
peace  excepted  —  "during  their  attendance  at  the  session 
of  their  respective  houses,"  and  the}'  shall  not  be  called 
to  account  at  any  place  whatsoever  "  for  any  speech  or 
debate  in  either  house."  The  word  session  is  to  be  under- 
stood as  meaning  the  whole  session,  and  it  includes  the 
time  '•^eundo  tt  ad projrria  redeundor  ^  So,  too,  the  word 
arrest  must  not  be  interpreted  here  in  its  strictest  sense. 
Summonses  to  appear  as  a  Avitness  or  juror,  under  ])en- 
alty,  are  not  regarded  as  arrests.  Again,  the  second 
clause  is  not,  according  to  one  view  of  it,  to  be  inter- 
preted in  its  strict  verbal  sense.  The  immunity  is  not 
limited  to  the  speeches  and  debates.  It  extends  also  to 
the  votes  cast,  the  reports  made,  and  in  general  to  every 
official  act  as  a  member  of  one  of  the  two  houses. 

lu  the  case  already  cited  of  KlThoura  vs.  Thoirqyson, 
the  supreme  court  dismissed  the  suit  against  the  members 
of  the  committee  which  had  issued  the  summons  and  de- 
clared the  scrgeant-at-arms  alone  liable.  It  is  not,  tliere- 
fore,  entirely  without  doubt  how  the  clause  is  to  be 
interpreted  from  the  other  standpoint.  It  is  admitted 
that  the  privilege  relates  only  to  what  is  said  or  done 

sergeant-at-arms  is  such  a  breach  of  its  privileges,  then  the  beating 
of  a  member  is  naturally  much  more  so.  But  in  the  more  recent  de- 
cision the  supreme  court  seems  no  longer  to  x-ely  ui>on  the  reasoning 
on  which  it  based  its  decision  in  the  earlier  case. 

1  •'  Except  treason,  felony  and  breach  of  the  peace."  This  clause 
is  so  construed  that  all  "  indictable  offenses,"  as  well  as  constructive 
breaches  of  the  peace,  are  included,  and  consequently  the  i>rotection 
against  arrest  extends  only  to  civil  actions. 


THE    FEDERAL   CONSTITUTION.  105 

strictissime  in  the  fulfillment  of  official  duties.  It  is  ques- 
tionable, however,  how  this  can  be  reconciled  with  the 
publication  of  speeches,  reports,  etc.  The  official  pub- 
lications, directed  by  either  house  or  by  the  law,  are  now 
protected,  even  in  England,  against  any  claim  for  dam- 
ages. But  in  the  United  States  it  is  commonly  assumed 
that  a  member  of  congress  is  at  liberty  to  send  to  his  con- 
stituents in  printed  form  whatever  he  has  said  in  congress, 
without  exposing  himself  thereby  to  suit  for  slander,  libel, 
etc.  There  are,  nevertheless,  older  judicial  decisions  hold- 
ing a  directly  opposite  view.  The  question  has  not  yet 
been  brought  to  a  definite  issue  by  a  decision  of  the  su- 
preme court. 

Congressmen  enjoy  no  further  privileges.  The  constitu- 
tion provides,  however,  that  a  seat  in  the  federal  legisla- 
ture shall  not  be  an  unpaid  honorary  office,  but  that  the 
senators  and  representatives  shall  receive  compensation 
for  their  services.  The  amount  is  fixed  by  law,  and  it  is 
paid  out  of  the  treasury  of  the  United  States.  By  the 
act  of  March  3,  1873,  this  salary  of  congressmen  and 
territorial  delegates  was  raised  to  $7,500  per  annum,  be- 
sides actual  traveling  expenses  once  each  session  on  the 
most  direct  route  to  the  seat  of  government.  Public 
opinion  condemned  this  law  with  such  emphasis  that  it 
was  repealed  January  22,  1874,  and  the  act  of  July  28, 
1866,  was  again  put  in  force.  Under  it  the  salary  is  $5,000 
per  annum,  with  mileage  at  twenty  cents  per  mile  for 
each  journey  to  and  from  the  regular  sessions. 

The  privileges  and  rights  granted  congressmen,  as  well 
as  the  legal  limitations  to  which  they  are  subjected,  have 
been  regulated  with  a  view  to  their  office  as  law-makers. 
Their  peculiar  position  is  due  to  the  fact  that  the  interests 
of  the  state  require  that  their,  independence  be  assured, 
so  far  as  law  can  assure  it.    In  fulfilling  their  duties  to 


106  CONSTITUTIONAL    LAW   OF   THE   UNITED    STATES. 

the  best  of  their  knowledge  and  conscience,  the}'  should 
not  be  influenced  by  fear  of  personal  unpleasantness,  in- 
jury or  wrong  resulting  therefrom.  ]^or  should  they  be 
exposed  to  the  temptation  of  being  turned  away  from  the 
right  patli  by  the  prospect  of  personal  gain.  Art.  I.,  sec. 
6,  §  2,  prohibits  a  senator  or  representative  from  being 
appointed  to  any  federal  office  which  was  created,  or  the 
emoluments  of  which  were  increased,  during  his  term 
of  office.  It  is  further  provided,  that  no  officer  of  the 
United  States  can  be  a  member  of  eitlier  house  of  con- 
gress as  long  as  he  retains  his  office.  A  member  of  con- 
gress b}'  accepting  any  other  federal  office  thereby  for- 
feits his  scat,  and  although  his  re-election  is  not  forbidden, 
he  cannot  take  his  seat  again  unless,  prior  thereto,  he  re- 
signs his  other  office.  As  the  members  of  congress  fill  a 
federal  olUce  in  the  broader  sense  of  the  word,  tlieycome 
under  tlie  ])iovision  in  art.  I.,  sec.  9,  §  7,  according  to 
which  no  federal  officer,  without  permission  of  congress, 
can  accept  from  kmg,  prince,  or  foreign  state  any  "  pres- 
ent, emolument,  office  or  title  of  any  kind  wliatever." 

§  29.  The  Pjjesident.  In  regard  to  his  personal  rights, 
the  president  occupies  no  peculiar  position.  The  constitu- 
tion (art.  II.,  sec.  1,  §  0)  grants  him  a  salary,  with  the 
proviso  that  it  is  not  to  be  increased  or  diminished  during 
his  term  of  office.  It  also  forbids  his  receiving  any  other 
income  from  the  United  States,  or  from  any  of  the  states. 
The  salary,  originally  fixed  at  $25,000  per  annum,  was 
doubled  by  the  act  of  March  3,  1873. 

§  30.  The  Judges.  The  judges  also  at  stated  times 
draw  salaries,  which  cannot  be  decreased  as  long  as  they 
are  in  office  (art.  III.,  sec.  1).'     ]^o  personal  privileges  are 

1  The  salary  of  the  chief  justice  of  the  sui:>reme  court  is  $10,500; 
that  of  the  associate  justices  is  .^10,000;  tliat  of  the  circuit  judges 
$6,000;  that  of  the  district  judges  from  |3,o00  to  $4,500;  and  that  of 


THE   FEDERAL   CONSTITUTION.  107 

granted  them  by  the  constitution,  and  they  are  subject  to 
no  peculiar  legal  limitations. 

THE  FUNCTIONS  OF  THE  GOVERNMENTAL  FACTORS. 

In  order  to  avoid  repetitions,  otherwise  inevitable,  in  a 
discussion  of  the  powers  of  the  governmental  factors, 
their  functions  will  be  treated  in  this  section  principally 
on  their  formal  side.  Nothing  will  be  said,  therefore, 
about  the  judiciary,  since  the  constitution  contains  no 
provisions  of  this  sort  in  regard  to  it.  A  description  of 
the  entire  judicial  procedure  is  self-evidently  out  of  place 
here.  As  for  the  executive  functions,  only  those  should 
and  need  be  touched  upon  which  present  peculiarities  of 
some  kind  or  other. 

§  31.  The  General  Legislative  Functions  of  Con- 
gress. The  authority  of  either  house  of  congress  to 
establish  its  order  of  business  is  not  unlimited.  The  con- 
stitution contains  several  provisions  as  to  this,  some  of 
which  have  already  been  mentioned  in  another  connec- 

the  judges  of  the  court  of  claims  $4,500.  It  is  often  said  that  these 
salaries  are  too  low,  because  many  lawyers  are  able  to  earn  much 
more  and  there  is  therefore  danger  that  the  jurists  best  fitted  by  knowl- 
edge and  character  will  no  longer  be  willing  to  go  upon  the  bench. 
It  has,  indeed,  already  happened  that  the  enormous  fees  the  large 
railroad  corporations  pay  their  attornej's  have  proved  more  attractive 
than  the  honors  of  the  judiciary,  but  the  latter  are  still  prized  so 
highly  that  finding  fit  men  has,  hitherto  at  least,  been  easy.  It  must, 
however,  be  admitted  that  in  general  the  salaries  of  officials  in  the 
United  States,  especially  of  the  higher  grades,  are  too  low.  But 
raising  them  might  have  bad  results  as  long  as  the  principle  of  "ro- 
tation in  ofiice  "  is  not  given  up.  Only  when  an  end  is  put  to  this 
folly  can  the  most  vigorous  talents  be  expected  to  devote  themselves 
gladly  to  the  service  of  the  state.  Then  they  will  not  long  be  de- 
terred by  the  low  salary,  especially  if  a  system  of  pensions  is  intro- 
duced. Not  only  might  this  then  be  done  without  danger,  but  it 
would  be  an  advantage  from  every  point  of  view. 


ItiS  COXSTITUTIOXAL    LA.W    OF   THE    UNITED    STATES. 

tion.  There  remains  to  be  added  that  each  house  must 
keep  a  journal  of  its  proceedings,  in  which  the  yeas  and 
nays  of  a  vote  must  be  entered,  whenever  tliis  is  de- 
manded by  one-fifth  of  tlie  members  present.  The  jour- 
nal must  be  published  from  time  to  time,  but  it  is  within 
the  discretion  of  the  two  houses  to  sup])ress  those  parts 
which  they  think  it  necessary  to  keep  secret  (art,  I.,  sec.  5, 
§  3).  It  is  evident,  therefore,  that  it  is  not  an  oversight 
that  the  constitution  contains  no  express  provisions  as  to 
whether  the  proceedings  of  congress  shall  be  public  or 
secret.  Evidently  publicity  was  intended  to  be  the  rule ; 
but  it  was  also  intended  to  leave  it  wholly  to  the  judg- 
ment of  congress  in  what  cases  and  upon  what  grounds 
an  exception  should  be  made.  This  corresponds,  too, 
with  actual  custom.  Till  February  20,  1794,  the  senate, 
indeed,  always  met  with  closed  doors,  but  since  then  the 
only  permanent  exceptions  to  the  rule  of  publicity  are 
the  executive  sessions,  in  which  the  senate  performs  no 
legislative  duties,  but  acts  as  the  adviser  and  controller 
of  the  executive.  Moreover  the  obligation  of  secrecy  as 
to  occurrences  in  the  executive  sessions  is  frequently  re- 
moved. The  legislative  functions,  as  far  as  the  ordinar}' 
work  of  the  two  houses  is  concerned,  are  discharged 
coram  pvMico.  "When  the  slavery  question  frequently 
brought  passions  to  the  boiling  point,  the  "clearing  of 
the  galleries  "  was  often  demanded,  but  this  was  intended 
simply  to  secure  protection  against  improper  demonstra- 
tions of  the  spectators  and  was  never  regarded  as  a  de- 
nial of  publicity. 

§  32.  The  Process  of  Legislation.  The  legislative 
initiative,  with  a  single  exception  (in  favor  of  the  house), 
which  will  be  mentioned  later  on,  belongs  in  an  entirely 
equal  degree  to  the  two  houses  of  congress.  The  consti- 
tution prescribes  no  forms  which  are  to  be  observed  in 


THE    FEDERAL   CONSTITUTION.  109 

initiating  legislation.  Their  establishment  is  entirely  a 
matter  of  the  rules  adopted  by  either  house.  According 
to  these,  the  preparation  of  a  bill  is  mainly  incumbent 
upon  the  standing  committees,  which,  in  the  house  of  rep- 
resentatives, are  appointed  by  the  speaker,  and  in  the  sen- 
ate are  elected  by  the  majority.^     Special  committees  may 

1  In  the  48th  congress  (1883-85),  the  senate  had  twenty-nine  and  the 
house  forty-seven  standing  committees.  For  the  introduction  of  a 
bill  the  committees  require  the  permission  of  the  respective  house. 
This  is,  however,  usually  given  either  when  the  committee  is  ap- 
pointed or  by  a  permanent  provision  of  the  rules.  The  house  must 
likewise  be  asked  whether  it  will  receive  the  report  of  the  committee. 
As  a  rule  the  question  is  not  actually  put.  An  affirmative  answer  is 
assumed  if  no  objection  be  made.  Many  of  the  customary  formali- 
ties of  the  English  parliament  have  been  set  aside.  Minority  reports 
are  received  as  a  matter  of  fact,  although  really,  as  a  matter  of  parlia- 
mentary law,  only  the  committee  as  such  can  report,  and,  of  course, 
in  a  strict  sense,  only  one  report  is  possible  —  that  of  the  majority. 
It  is  odd  that  the  committees  are  bound  by  their  decisions  and  cannot 
reconsider  them.  Cushing's  Law  and  Practice  of  Legislative  Assem- 
blies, 8  1915.  The  committees  need  an  especial  authorization  in  order 
"to  send  for  persons,  papers  and  records;"  but  the  examination  of 
voluntary  witnesses  may  take  place  without  such  authority.  In  ex- 
ceptional cases  the  committees  are  authorized,  that  is  directed,  to 
continue  their  labors  after  the  close  of  the  session.  In  the  house  of 
representatives,  in  the  "  morning  hour"  of  Tuesday,  Wednesday  and 
Thursday,  that  is,  after  the  reading  of  the  journal,  the  standing  com- 
mittees are  called  upon  by  the  speaker,  in  regular  order,  to  present 
their  reports  and  to  make  motions.  An  hour's  time  is  given  the 
maker  of  the  report.  He  usually  gives  up  a  greater  or  less  portion 
of  this  short  time  to  general  debate.  The  speaker,  however,  recog- 
nizes only  those  persons  who  have  previously  come  to  a  private  un- 
derstanding with  the  maker  of  the  report,  and  these  only  upon  their 
promise  to  limit  their  remarks  to  a  certain  number  of  minutes.  Im- 
mediately before  the  expiration  of  the  hour  the  maker  of  the  report 
demands  the  "  previous  question,"  that  is,  moves  to  close  the  debate, 
and  this  demand  is  generally  granted,  be(iause  it  is  to  everybody's 
interest  that  the  work  of  legislation  be  done  in  the  speediest  manner. 
For  each  one  of  them  is  particularly  interested  in  some  other  bill,  and 
the  whole  number  of  the  bills  is  always  so  enormous  that  only  a  small 


110  COXSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

also  be  appointed,  and  each  and  every  individual  mem- 
ber, with  the  consent  of  his  house,  may  introduce  a  bill.' 
"What  further  treatment  a  bill  once  introduced  experi- 
ences,—  when  it  is  taken  up  for  discussion;  whether  a 

fraction  of  them  can  ever  be  disposed  of.  The  gi-eat  majority  are 
buried  forever  by  reference  to  some  committees,  for  the  committees 
will  not,  or  cannot,  ever  i-eport  upon  them.  When  the  previous  ques- 
tion is  carried  no  more  amendments  are  in  order,  and  the  maker  of 
the  report  has  another  hour  for  the  discussion  of  the  measure  before 
the  final  vote  takes  place.  An  immense  number  of  kiws  are  thus 
passed  in  the  house  in  the  course  of  two  hours.  When  a  committee 
is  called  bj'  the  speaker,  only  the  morning-  hours  of  two  successive 
days  belong  to  it.  If,  however,  tlie  morning  hours  of  the  second  day 
have  elapsed  without  arriving  at  a  conclusion  upon  the  bill  in  hand, 
then  it  becomes  "'  unfinished  business,"  and  as  such  is  at  the  head  of 
the  order  of  the  day  for  the  morning  hours  until  it  is  disposed  of. 
The  four  committees  on  jninting,  elections,  ways  and  means  and 
appropiiatioiis  hold  a  privileged  position.  The  reujainiiig  standing 
committees  must  be  content  with  the  time  that  is  granted  them  by 
these  four.  Stnutor  Hoar  calcukates  that,  on  an  average,  not  more 
than  two  hours  is  accorded  each  of  them  during  an  entire  session. 
This  fact  is  tiie  more  significant,  since  most  of  the  bills  are  really  dis- 
cus ed  only  in  committee,  and  the  committees  have  the  right  to  meet 
with  closed  doors.  To  mention  in  the  liouse  any  occuiTence  in  the 
committee  room,  except  upon  the  basis  of  the  official  iei;ort,  makes 
the  offender  guilty  of  a  "  breacli  of  i)rivilege."  It  is,  moreover,  quite 
usTial  for  tlie  committees  to  examine  experts,  and  as  these  are,  for  the 
most  part,  sjiecially  interested,  the  laws  are  based  to  a  large  extent 
upon  ex  parte  testimony,  while  the  whole  bodj-  of  legislation  is  far 
removed  from  anything  like  uniformity.  It  is  only  in  regard  to  the 
appropriation  bills  that  the  house  of  representatives  has  retained  the 
character  of  an  advisory  body.  The  appropriations  are  discussed  in 
committ(/e  of  the  whole:  the  previous  question  cannot  be  moved;  and 
the  riglit  to  yiropose  amendments  is  not  onh"  formally,  but  also  actu- 
all}-,  unlimiteil.  See  G.  F.  Hoar,  The  Condvet  of  Business  in  Ccni- 
gress,  in  the  North  American  Review,  February,  IbT'J,  p.  118  et  seq. 

I  A  stan(hng  opportunity  to  do  so  is  presented  in  the  morning  hour 
of  Mon<iay.  For  then  the  states  and  territories  are  called  in  regular 
order  for  tliis  purpose.  It  is  also  to  be  observed  that  on  Mondays, 
after  the  morning  hours,  and  on  the  last  ten  days  of  the  session,  tl.c 


THE    FEDERAL   CONSTITUTION.  Ill 

committee  is  to  pass  upon  it;  whether  it  is  subjected  to 
preliminary  consideration  in  the  so-called  committee  of 
the  whole,  etc., —  all  this  is  regulated  by  the  general  pro- 
visions of  the  rules  or  decided  by  resolution.*  When  a 
1  ill  has  passed,  it  is  sent  over  to  the  other  house  with  a 
message  to  that  effect.^  "Whether  the  other  house  will 
consider  and  pass  upon  it  is  entirely  at  its  pleasure.     If  it 

"suspension  of  the  rules  "  may  be  moved  in  order  to  take  up  and  pass 
any  bill.  To  pass  the  motion  to  suspend  the  rules  a  two-thirds  ma- 
jority is  necessary.  If  passed,  there  can  be  no  debate  on  the  bill,  and 
no  amendment  offered.  Consequently,  so  far  as  the  house  of  repre- 
sentatives is  concerned,  a  bill  may  become  a  law  by- one  vote,  without 
any  discussion  and  without  the  possibility  of  any  changes  whatever. 
At  every  session  a  vast  number  of  bills  are  actually  passed  in  this 
manner. 

1  The  committee  of  the  whole  is  actually  the  whole  house  (or  sen- 
ate). In  the  senate  it  is  called  the  quasi-committee  of  the  whole.  In 
passing  upon  a  measure  it  is  subject  to  the  same  rules  as  prevail  in 
the  house.  In  truth  the  committee  of  the  whole  is  not  a  committee 
at  all,  but  the  house  itself  transacting  business  in  a  peculiar,  and  in 
fact  a  simpler  and  freer,  way.  Its  function  corresponds  with  that  of 
the  committees  in  being  simply  a  preparatory  one.  Its  conclusions 
are  only  recommendations  to  the  house,  without  any  obligation  what- 
ever. The  most  significant  advantage  of  the  arrangement  is  the 
greater  freedom  and  exhaustiveness  of  the  discussions,  as  each  mem- 
ber may  speak  as  often  as  he  chooses.  The  committee  of  the  whole 
can  consider  only  definite  resolutions.  In  sessions  of  the  "  committee 
of  the  whole  house  on  the  state  of  the  Union,"  every  member  may 
speak  on  any  question  he  desires.  The  speaker  does  not  preside  over 
the  committee  of  the  whole.  Any  member  whom  the  house  may  ap- 
point takes  the  chair.  In  the  house  of  representatives,  since  1841,  no 
speech  is  permitted  to  occupy  more  than  one  hour.  At  the  expira- 
tion of  the  last  minute  the  speaker's  gavel  stops  the  orator  short,  even 
in  the  middle  of  a  sentence.  By  calling  for  the  previous  ques- 
tion, debate  cnn  not  only  be  closed  at  any  moment,  but  entirely 
prevented.  Debate  on  the  motion  for  the  previous  question  is  not 
allowed. 

2  That  a  simple  majority  of  the  members  voting  suffices  to  pass  a 
bill  is  not  expressly  declared  in  the  constitution,  but  it  is  regarded  as 
self-evident,  and  it  follows,  too,  from  the  exceptional  provisions  men- 
tioned further  on. 


112  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

passes  it  Avitliout  ainenchiieiit,  the  bill  goes  to  the  presi- 
dent for  his  api)roval.  If,  on  the  contrary,  it  passes  it 
Avith  amendments,  the  bill  is  returned  to  the  other  house, 
which,  when  it  again  considers  the  matter,  either  concurs 
in  the  amendments  or  refuses  to  do  so,  or  offers  new 
amendments  of  its  own.  Thus,  a  bill  may  be  bandied 
from  one  house  to  the  other  as  long  as  there  is  any  hope 
of  its  passage.  If  that  cannot  be  directl}^  attained  and 
yet  seems  attainable,  then  one  or  the  other  house  proposes 
the  appointment  of  a  conference  committee.  If  the  other 
house  agrees  to  this  and  the  conference  committee  arrives 
at  any  agreement,  its  report  is,  as  a  rule,  concurred  in  by 
both  houses,  although,  of  course,  neither  is  obliged  to  do  so. 
If  the  conference  committee  does  not  come  to  an  agree- 
ment, the  usual  process  of  bandying  the  bill  back  and 
forth  can  be  taken  up  where  it  was  interrupted,  or  a  sec- 
ond or  third  conference  committee  may  be  appointed, 
until  one  of  the  houses  in  some  way  or  other  declares 
that  it  will  no  longer  protract  the  discussion. 

§  33.  The  Co-operation  of  the  President  in  Legisla- 
tion.    A  bill  ]mssed  by  both  houses  of  congress  becomes 
law  as  a  rule  by  the  approval  of  the  president.     Yet  this 
,        right  of  approval  must  not  be  considered  as  a  part  of  the 
aA\      legislative  power,  for  the  constitution  expressly  declares 
J^'    ^        that  "  all  "  the  legislative  authority  granted  shall  vest  in 
congress.     The  co-operation  of  the  president  in  the  mat- 
ter of  legislation  is  intended  only  as  a  control.    Congress 
alone  is  the  author  of  the  laws.     If  the  president  has  ob- 
jections  to   raise  against  the  legislative  conclusions  of 
congress,  he  is  in  duty  bound  to  submit  the  latter  for 
reconsideration.     Then,  in  order  to  become  laws,  they 
must  receive  a  two-thirds  majority  in  each  house.^     It  is, 

1  The  phrase  used  in  the  constitution  admits  of  various  interpreta- 
tions, as  it  is  not  very  precise.  Congress  has  adopted  the  view  that 
a  two-thirds  majority  of  those  voting,  not  of  all  the  members  elected. 


THE   FEDERAL   CONSTITUTION.  113 

therefore,  unquestionably  an  abuse  of  language  that  the 
refusal  to  approve  a  bill  should  be  called  a  veto,  not  only 
in  ordinary  speech,  but  also  in  official  terminology.  The 
word  is  not  to  be  found  in  the  constitution.  It  is  bor- 
rowed from  a  state  of  affairs  essentially  different  and 
does  not  harmonize  with  the  constitutional  nature  of  the 
president's  co-operation  in  legislation.  The  president  has 
no  right  to  forbid  congress  to  do  anything.  He  can  only 
state  that  he  does  not  agree  with  it  and  declare  his  rea- 
sons therefor.  Thereupon  the  constitution  subjects  the 
exercise  of  the  legislative  powers  of  congress  in  the  par- 
ticular case  to  more  stringent  conditions.^ 

is  required.  Since  a  simple  majority  is  sufficient  to  transact  business, 
under  certain  circumstances  a  bill  may  be  made  a  law  over  the  objec- 
tions of  the  president  by  the  majority  of  each  house. 

'  On  the  other  hand  it  is  entirely  within  the  discretion  of  the  pres- 
ident as  to  what  reasons  he  shall  regard  as  sufficient  in  order  to  make 
use  of  this  power.  The  exercise  of  it  has  led  to  many  violent  collis- 
ions between  the  executive  and  the  legislative  departments.  In  these 
conflicts  the  attempt  has  been  made  with  much  acumen  to  limit  the 
president's  freedom  of  action  by  invoking  all  sorts  of  doctrines.  It 
is  true  that  some  of  them  have  great  political  weight,  but  they  lack 
a  firm  constitutional  basis.  During  the  "forties"  the  whigs  agi- 
tated the  entire  repeal  of  the  veto  power,  but  only  to  their  own  hurt. 
Very  recently  an  agitation  has  begun  in  the  opposite  direction.  The 
president  can  refuse  to  approve  only  the  whole  bill,  even  if  he  takes 
exception  to  but  one  or  two  points  in  it.  It  is  now  proposed  to  give 
him,  so  far  as  the  appropriation  bills  are  concerned,  the  right  to  re- 
turn individual  appropriations  for  reconsideration  and  to  give  the 
others  the  force  of  law  by  approving  them.  It  can  scarcely  be 
doubted  that  this  decisive  reform  will  surely  be  enacted  sooner  or 
later,  but  the  battle  for  it  will  certainly  be  severe  and  probably  be 
long.  The  president  must  state  his  objections  in  writing  and  return 
the  bill  to  the  house  where  it  originated.  The  new  vote  upon  it  must 
be  by  roll-call.  The  vote  of  each  member  must  be  entered  on  the 
journal.  The  same  rules  apply  in  the  other  house,  to  which  the  bill 
and  the  president's  objections  are  sent,  if  the  first  house  has  passed 
the  bill  again  by  a  two-thirds  majority.  If  tlie  president  does  not 
8 


1  14:  CONSTITU  riOXAI.    LAW    OF    THE    UNITED    STATES. 

§  34.  The  President.  The  president's  direct  constitu- 
tional influence  upon  legislation  is  not  limited  to  his  co- 
operation and  control,  as  sketched  in  the  last  paragraph. 
The  constitution  directs  him  from  time  to  time  to  give 
congress  "information  of  the  state  of  the  Union,"  and  it 
is  expressl}-  made  his  duty  to  "  recommend  .  .  .  such 
measures  as  he  shall  judge  necessary  and  expedient'" 
(art.  II.,  sec.  3).  In  the  legislative  initiative,  as  well  as  in 
legislation,  congress  is  subject  in  a  certain  way  to  the 
control  of  the  president,  but  this  control,  so  far  as  the 
initiative  is  concerned,  is  naturally  positive,  not  negative. 
Even  if  he  cannot  himself  submit  any  bills,  he  can  nev- 
ertiieless  exert  a  pressure  upon  congress  to  prevent  its 
being  guilty  of  sins  of  omission,  for  in  his  messages  he 
calls  the  attention  of  the  whole  people  to  those  matters 
which  require  the  enactment  of  laws,  or  at  least  make 
new  laws  seem  desirable.  His  reports  ''  of  the  state  of  the 
Union  "  appear  in  the  form  of  the  so-called  messages.  The 
annual  messages  are  sent  to  congress  at  the  beginning  of 
the  annual  session.  They  discuss  all  important  domestic 
and  foreign  relations  pretty  thoroughly,  and  are  therefore 
always  much  more  compreiiensive  than  the  ordinary  crown 
speeches  in  the  monarchies  of  Europe.  Accompanying 
the  messages  are  the  exhaustive  reports  by  the  secretaries 
about  their  respective  departments.  The  messages  and 
reports  are  called  the  executive  documents,  and  are  cited 

sign  a  bill  or  return  it  with  his  objections  within  ten  days  (Sundays 
excepted)  after  it  has  been  sent  to  him,  it  becomes  a  law  without  liis 
ai)proval,  unless  congress  has  adjourned  within  the  ten  days  (art.  I., 
sec.  7,  g  2).  Thus  a  bill  may  become  a  law,  even  though  the  president 
has  refrained  from  expressing  any  opinion  about  it,  and  it  may  also 
not  tecome  a  law,  because  he  has  expressed  no  opinion.  Every  other 
order,  resolution,  or  vote  for  which  the  concuiTcnce  of  the  two  houses 
is  necessary  must  likewise  be  presented  to  the  president  and  is  subject 
to  the  same  provisions  as  the  Vjills.  The  only  exceptions  are  the  reso- 
lutions to  adjourn  (art.  I.,  sec.  7,  §  3). 


THE   FEDERAL   CONSTITUTION.  115 

under  this  title  in  scientific  and  political  literature.  This 
designation  embraces  also  the  special  messages,  which,  as 
their  name  implies,  are  issued  on  special  occasions  and 
relate  to  special  business.  The  obligation  to  report  to 
congress  upon  the  state  of  the  Union  naturally  does  not 
exclude  the  president's  right  to  express  himself  publicly 
in  other  ways  and  thus  to  address  the  whole  people.  But 
this  happens  very  seldom,  and  —  in  accordance  with  un- 
broken custom  —  only  in  two  distinct  ways:  by  the  inau- 
gural address  and  by  proclamations.  The  oath  already 
mentioned  which  the  president  must  take  upon  assuming 
his  office  is  taken  publicly  upon  the  vast  open  portico  of 
the  capitol  at  Washington,  and  thereupon  the  president 
delivers  his  so-called  inaugural  address,  in  which  he  un- 
folds to  the  people  the  programme  of  his  administration.^ 
The  occurrence  of  certain  events,  such  as  the  admission 
of  new  states,  is  announced  to  the  people,  in  accordance 
with  legal  precedents,  by  proclamation.  The  president 
also  issues  proclamations  upon  his  own  initiative.  In 
these  his  character  as  the  bearer  of  the  executive  power 
is  more  clearly  and  distinctly  shown  than  in  the  messages 
or  in  the  inaugural  address.  Many  presidents  have  never 
had  the  opportunity  of  addressing  the  people  in  this  most 
solemn  and  weighty  manner,  because  the  occasion  must 
be  highly  significant  and  of  a  very  special  character  to 
justify  the  use  of  this  means  or  to  make  it  appear  neces- 
sary."^ 

1  Washington,  upon  his  retirement  to  private  life,  delivered  a  fare- 
well address  to  tlie  people,  which  to  the  present  day  is  regarded  by 
the  American  nation  as  among  the  greatest  and  most  valuable  rec- 
ords of  its  history.  Jackson  is  the  only  president  who  followed  this 
example.  His  opponents  took  bitter  exception  to  his  venturing  in 
this  way  to  range  himself  with  the  father  of  his  country. 

2  By  far  the  most  important  pi'oclamations  which  the  history  of  the 
United  States  has  to  show  are  Lincoln's  emancipation  proclamations 
of  September  22,  1862,  and  January  1,  1863. 


IIG  CONSTITrnoNAL    LAW    OF    THE    UNITED    STATES. 

THE  POWERS  OF  CONGRESS. 

^  .S.").  Gexekal  Pkincipees.  To  rightly  understand  not 
only  the  ])o\vers  of  congress,  but  also  those  of  the  otlier 
factoi-s  of  government,  it  is  necessary,  in  considering  in- 
dividual instances,  to  keep  constantly  in  view  the  general 
principles  concerned  and  the  fundamental  doctrines  of 
constitutional  law. 

The  constitution  does  not  define  the  powers  of  the 
factors  of  the  government.  It  simply  enumerates  them.' 
Since  in  their  exercise  they  must  necessarily  be  made 
definite,  it  devolves  upon  the  governmental  factors  them- 
selves to  decide  upon  the  limits  of  their  own  capacity. 
Thus  the  courts,  and  in  the  last  instance  the  federal  su- 
preme court,  under  the  principles  and  limitations  already 
laid  down,  must  be  the  controlling  power  in  the  decision. 
To  define  these  powers  correctly  it  must  not  be  lost  sight 
of  that  all  the  powers  si)ring  from  one  idea  and  are  in- 
tended to  reach  one  goal.  They  must  therefore  always 
be  considered  as  a  whole.-  It  follows  from  these  premi- 
ses, not  only  that  besides  the  ])Owers  expressly  granted 
there  are  others  which  are  implied  b}*  those  granted  and 
result  from  them  (implied  and  resulting  powers),  but  that 
the  second  kind  of  powers  is  not  distinguished  in  sub- 
stance from  the  first.  If  the  doctrine  that  the  powers 
of  the  government  are  enumerated  must  be  understood 
to  mean  that  the  expressly  granted  powers  must  be  liter- 
ally interpreted  and  that  there  can  be  no  unenumerated 
power,  then  the  federal  government  would  be  deprived 
of  the  possibility  of  existence.^ 

If  the  constitution  can  be  interpreted  in  two  ways,  one 
of  which  assures  the  fulfillment  of  the  object  of  its  qxist- 

1  Gibbons  vs.  Ogden,  Wheaton,  IX.,  1. 

■J  The  Ijigal  Tender  Cases,  Wallace,  XII.,  532. 

»76iVZ.,546. 


THE   FEDERAL   CONSTITDTIOX.  117 

ence,  while  the  other  tends  to  render  it  nugatory,  there 
can  be  no  doubt  which  is  the  right  rendering. 

§  36.  Taxation,  Fixance  and  the  Public  Debt.  The 
financial  distress  which  ever  threatened  more  and  more 
to  be  fatal  to  the  republic,  under  the  articles  of  confed- 
eration, deserves  to  be  thanked,  in  the  first  instance,  for 
the  reorganization  of  the  Union.  The  constitution  there- 
fore naturally  takes  ample  care  that  the  federal  govern- 
ment shall  not  want  the  necessary  material  means  to 
fulfill  the  object  of  the  federation.  Congress  is  em- 
powered "to  lay  and  collect  taxes,  duties,  imposts  and 
excises,  to  pay  the  debts  and  provide  for  the  common  de- 
fense and  general  welfare  of  the  United  States,  but  all 
duties,  imposts  and  excises  shall  be  uniform  throughout 
the  United  States "  (art.  I.,  sec.  8,  §  1).  Congress  may 
levy  imposts  of  any  kind,  and  as  they  are  collected  di- 
rectly from  the  individual  by  organs  of  the  federal  gov- 
ernment, without  the  mediation  of  the  states,  it  can 
constantly  satisfy  the  needs  of  the  nation  in  their  fullest 
range,  for  the  amount  of  ever}'^  impost,  which  congress  is 
permitted  to  make,  is  left  wholly  to  its  own  discretion. 
Political  and  economical  considerations  and  regard  for 
business  interests  set  certain  bounds  to  it  in  this  re- 
spect, but  its  constitutional  authority  is  unlimited.^  But 
still  the  power  of  congress  to  levy  taxes  is  not  entirely 
unconditioned.  In  fact  bounds  are  set  to  it  in  various 
directions  by  several  express  provisions  of  the  consti- 

1  The  Union  is  divided  into  collection  districts.  The  president  fixes 
their  number  and  boundaries.  In  every  district  there  is  a  collector 
who  is  allowed  a  number  of  assistants  (deputy  collectors).  After  a 
reduction  earnestly  undertaken,  September  5,  1883,  the  number  of 
revenue  districts  wa.s  eighty-four.  The  heads  of  the  custom-houses 
are  called  collectoi"s  of  customs. 

See  McCulloch  vs.  Maryland,  Wheaton,  IV.,  316,  428.  See,  also, 
Veazie  Bank  vs.  Fenno.  "Wallace,  VIII.,  548. 


lis  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

tution.  "All  duties,  imposts  and  excises  shall  be  uni- 
form throughout  the  United  States."  '  Moreover,  direct 
taxes  must  be  levied  in  proportion  to  the  population  of 
the  states  (art.  I.,  sec.  2,  §  3)  and  the  census  :s  made  the 
basis  (art.  I.,  sec.  2,  §  4).'-  Finalh',  "no  tax  or  duty  shall 
be  laid  on  articles  ex])orted  from  any  state.''  '■' 

Further  restrictions  of  the  right  of  taxation  result  from 
the  fact  that  congress  can  exercise  it  only  for  the  fulfill- 
ment of  tiic  objects  enumerated.  The  expression  "gen- 
eral welfare"'  is  indeed  so  comprehensive  and  vague  that 
the  discretion  of  congress  is  given  the  widest  play.  But 
however  much  this  expression  may  be  stretched,  the 
mention  of  the  three  general  })urposes  makes  it  certain 
that,  for  other  purposes,  no  federal  taxes  can  be  levied. 
There  are  certain  bounds,  more  or  less  clearly  marked, 
wuthin  which  the  right  of  taxation  unquestionably  can- 

1  In  Loughborough  vs.  Blake,  Wheaton,  Y.,  317,  the  federal  supreme 
eoui-t  decided  that  this  means  not  only  tlie  states,  but  the  entire  do- 
main of  the  Union.  The  provision  thus  extends  also  to  the  District 
of  Columbia  and  to  the  territories. 

-The  words  used  are  "  capitation  or  other  direct  tax."  In  a  recent 
decision  {Springer  vs.  United  States,  102  U.  S.,  586;  Otto,  XII.),  the 
supreme  court  has  affirmed  the  already  dominant  view,  that  only 
jMjll-taxes  and  taxes  on  real  estate  are  direct  taxes  within  the  meaning 
of  the  constitution.  An  income  tax  thus  comes  under  neither  of  the 
constitutional  provisions  cited. 

^  Schliefs  view  (pp.  233.  234),  that  tliis  refers  only  to  articles  ex- 
ported from  one  state  of  the  Union  into  another,  has  never  found  a 
champion  in  the  United  States  and  never  can  find  one.  The  debates 
of  the  Philadelphia  convention  over  this  pai-agraph  were  a  struggle 
between  the  northern  and  southern  states.  The  latter  resisted  with 
all  their  might  the  attempt  to  impose  an  export  duty  on  their  staple 
products,  the  result  of  slave  labor,  which  were  sent  mainly  to  Europe. 
(See  Elliot's  Debates,  V.,  302,  357,  391,  432,  454,  538,  539.)  The  fact 
that  the  confederate  states  imposed  a  heavy  tax  on  the  exportation  of 
cotton  shows  that  the  fear  that  congress  for  fiscal  reasons  would 
seize  this  means  of  raising  money  might  easily  have  been  justified, 
at  least  in  times  of  distress. 


THE   FEDERAL   CONSTITDTIOX.  119 

not  be  exercised.  Above  all,  everything  which  comes  ex- 
clusively within  the  jurisdiction  of  the  states  must  be  left 
alone  by  congress,'  Every  tax  which  is  confessedly  laid 
for  a  private  purpose  is  unconstitutional.^  But  the  tax 
laws  of  congress  never  specify  an  object  to  which  the 
funds  yielded  by  the  tax  shall  be  applied.  The  courts 
are  therefore  not  in  a  position  to  guard  against  the  bur- 
dens imposed  by  a  law  upon  the  ground  that  an  uncon- 
stitutional application  of  the  resulting  funds  is  intended. 
The  constitutionality  of  federal  taxes  and  of  the  use 
made  of  the  federal  funds  are  wholly  distinct  questions, 
w*hich  must  be  kept  far  apart.  So  far  as  appropriations 
are  concerned,  the  courts  evidently  should  decide  against 
the  power  assumed  by  congress  only  in  perfectly  clear 
cases.  For,  in  the  nature  of  things,  the  legislative  and 
.not  the  judicial  power  has  to  discover  what  the  "  general 
welfare "  demands  and  what  may  promote  it.  In  con- 
gress, however,  the  very  comprehensiveness  and  vague- 
ness of  the  expression  make  it  possible  to  raise  the 
constitutional  question  continually,  but  the  decision  is 
usually  made  from  a  political  rather  than  a  legal  stand- 
point, however  much  legal  arguments  may  have  been 
formally  pushed  into  the  foreground  during  the  debate. 
The  legislative  history  of  the  Union,  especially  until  the 
outbreak  of  the  rebellion,  forms  a  continuous  chain  of 
illustrations  of  this  fact.  Protective  taxes  and  those  lev- 
ied for  the  so-called  "  internal  improvements,"  i.  <?.,  build- 
ing roads,  improving  rivers,  etc.,  have  been  claimed  to 
be  unconstitutional.  Theoretically  the  contest  is  not 
entirely  at  an  end  at  the  present  day,  but  the  actual  de- 
velopment of  affairs  has  been  so  great  that  the  one  set 

1  Gibbons  vs.  Ogden,  Wheaton,  IX.,  199. 

2  See  a  number  of  instances  and  the  judicial  decisions  upon  them 
in  Cooley,  Principles,  58. 


1'20  CONSTITUTIONAL    LAW    OF    THE    UNITKD    STATES. 

of  contestants  carry  on  the  conflict  on  politico-economical 
iiT'ounds  exclusively,  and  the  others  make  their  defense 
on  the  basis  of  the  industrial  and  political  interests  con- 
cerned in  the  particular  case,  unless,  indeed,  no  national 
importance  can  be  given  to  the  interest  in  dispute. 

Finally,  the  states"  concurrent  right  of  taxation  puts 
certain  limitations  upon  the  congressional  right.  Both 
are  alike  limited  by  several  express  provisions  of  the  con- 
stitution. AVithout  the  consent  of  congress,  the  states 
can  burden  imports  and  exports  with  imposts  of  any  kind 
whatever,  only  so  far  as  is  absolutely  necessary  for  the 
execution  of  their  inspection  laws  (art.  I.,  sec.  10,  §  2).' 
The  states  cannot  levy  a  tonnage  tax  without  the  con- 
sent of  congress  (art.  I.,  sec.  10,  §  3).  If,  however,  the 
conclusion  were  drawn  from  these  express  prohibitions 
that  the  states'  right  of  taxation  were  subject  to  no 
further  limitations,  they  might  exert  it  in  such  a  way 
that  the  federal  government  would  be  unable,  except 
under  great  disadvantages,  and  perhaps  not  able  at  all, 
to  carry  out  what  it  had  found  best  to  do  in  the  discharge 
of  its  constitutional  functions.  And  if  the  congressional 
power  of  taxation  were  subject  only  to  the  restrictions 
thus  far  noted,  congress  could  so  use  it  that  the  states 
would  be  hindered  and  crippled,  even  Avhen  they  were 
acting  within  the  cohstitutional  limits  of  their  authority. 
In  either  event,  violence  would  be  done  to  the  funda- 
mental idea  of  the  constitution,  that  the  federal  govern- 
ment and  the  state  governments  have  the  same  aim  —  the 
welfare  of  the  people.  The  concurrent  right,  therefore, 
is  subject  in  each  case  to  those  limitations  which  are 
necessary  for  the  security  of  the  interests  entrusted  by 

'  Tlie  net  pioceeils  of  such  imposts  must  be  i)aid  over  to  the  Uniteil 
States,  and  all  such  laws  are  bubject  to  the  revision  and  control  t  f 
c<jngress. 


THE   FEDERAL   CONSTITUTION.  121 

the  people  to  the  protection  of  the  other  political  factor. 
It  IS  impossible  to  point  out  every  single  consequence  of 
this  general  principle.  A  few  instances  will  make  the 
matter  sufficiently  clear.  The  states  cannot  tax  a  bank 
created  by  the  United  States  and  acting  as  their  fiscal 
agent,  or  the  salary  or  other  emoluments  of  federal  offi- 
cials, or  federal  bonds,  etc.^  Congress  cannot  tax  state 
property,  such  as  a  railroad,  salaries  of  state  officials, 
municipalities  and  their  property,  etc.- 

Among  the  debts  of  the  United  States  for  the  payment 
of  which  congress  could  levy  taxes  are  to  be  understood 

1  The  fact  that  a  corporation  created  by  the  United  States  renders 
its  creator  some  service  does  not  entitle  it  to  exemption  from  all  tax- 
ation by  the  states.     Railroad  Co.  vs.  Peniston,  Wallace,  XVIII. ,  5. 

2  See  on  this  point,  MeCulloch  vs.  Maryland,  Wheaton,  IV.,  316 ; 
Veazie  Bank  vs.  Fenno,  Wallace,  VIII.,  533;  and  Collector  vs.  Day, 
Wallace,  XI.,  113.  The  principal  sources  of  income  of  the  Union  are 
the  customs  and  the  internal  revenue  taxes.  The  latter  are  sufficiently 
characterized  by  giving  the  principal  heads  of  the  income  derived 
from  them.  The  nation  received  in  1884  from  distilled  liquors, 
$76,905,385 ;  from  tobacco,  $26,092,400 ;  from  malt  liquors,  $18,084,954. 
In  1883,  it  received  from  the  sale  of  stamps,  with  which  various 
articles  had  to  be  provided,  $7,053,053 ;  and  from  banks  and  bankers, 
$3,784,995.  The  taxation  of  business  formerly  went  much  further 
than  at  present.  But  even  now  it  is  not  restricted  to  banks  and 
bankers,  as  might  appear  from  the  above  list.  (The  taxation  of  the 
capital  and  deposits  of  banks  and  bankers  ceased  March  3,  1883 ;  they 
aie,  however,  burdened  with  several  other  taxes.)  Every  manufact- 
urer and  dealer  in  tobacco  or  the  liquors  designated  is  still  subject  to 
taxation  as  such.  The  articles  and  occupations  which  had  to  be  taxed 
during  the  war,  but  which  have  since  been  freed,  yielded  in  1866  an 
income  of  $236,236,037.  Tlie  proceeds  of  the  customs  were,  in  1884, 
$195,067,489.  The  total  imports  for  the  year  1883  represented  a  value 
of  $723,180,914,  of  which  $515,676,196  consisted  of  merchandise  sub- 
ject to  duties.  These  goods  paid  an  average  duty  of  41.63  per  cent., 
equal  to  29.68  per  cent,  on  the  total  import.  In  1884  the  imports 
decreased  to  $667,697,993.  On  the  questions  here  treated,  see  F. 
Hilliard,  Taxation,  Boston,  1885,  and  Cooley,  Law  of  Taxation,  Chi- 
cago, 1876.    ■ 


123  COXSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

those  incurred  under  tlie  articles  of  confederation  as  well 
as  those  contracted  afterwards.  The  former  are  covered 
by  the  provisions  of  article  YL,  §  1,  that  the  validity  of 
existing  obligations  shall  not  be  touched  by  the  adoption 
of  the  constitution.^  The  latter  are  covered  b}^  the  express 
grant  of  the  right  to  contract  new  debts.  Congress  is  em- 
powered ''to  borrow  money  on  the  credit  of  the  United 
States"  (art.  I.,  sec.  8,  §  2).  This  power  is  granted  with- 
out any  limitation.  Money  may  therefore  be  borrowed 
in  eveiy  way  known  to  modern  mercantile  life;  nay, 
according  to  the  decisions  of  the  supreme  court,  in 
such  a  way  that  there  is  no  borrowing  whatever,  even  in 
tlie  broadest  sense  of  the  term,  but  simply  an  advantage 
gained  to  the  nation  by  the  strengthening  of  its  credit. 
The  right  to  create  the  United  States  bank  was  deduced 
from  this  provision.  Upon  this  clause,  moreover,  the 
constitutionality  of  the  present  sj'^stem  of  national  banks 
must  be  based .'^  "Whether  (and,  if  so,  how  far)  congress 
has  the  power  of  making  the  federal  currency  a  legal 
tender  is  a  question  which  has  formerly,  and  again  quite 
recently,  actively  engaged  the  attention  of  the  people,  the 
])oliticians  and  the  courts.  But,  in  spite  of  the  repeated 
decisions  of  the  supreme  court  sustaining  it,  this  power  is 

1  In  this  connection  the  fourth  section  of  the  fourteenth  amend- 
ment, wiiich  needs  no  commentary,  may  be  cited.  "  Tl\e  validity  of 
the  public  di?bt  of  the  United  States,  authorized  by  law,  including 
debts  incurred  for  payment  of  pensions  and  bounties  for  services  in 
sui)iiressing  insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  state  shall  assume  or  pay  any  debt 
or  oblif^ation  incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  loss  or  emancipation  of  any  slave ; 
but  all  such  debts,  oljligations  and  claims  shall  be  held  illegal  and 
void." 

■^  They  are  com])elled  to  invest  a  large  portion  of  their  capital  in 
government  bonds,  and  thus  the  federal  government  can  naturally 
borrow  money  much  more  easily. 


THE    FEDERAL   CONSTITUTION.  123 

not  considered  as  definitely  established,  since  public 
opinion  looks  upon  these  decisions  and  their  motives,  at 
least  in  part,  as  very  doubtful.  Efforts  are  therefore 
being  made  to  settle  this  very  important  question  beyond 
doubt  by  an  amendment  to  the  constitution.  At  this 
point  I  can  supplement  what  has  been  stated  in  another 
connection  concerning  this  great  contest  by  pointing  out 
another  constitutional  provision,  Avhich  cannot  be  prop- 
erly wholly  disregarded  in  the  argument,  but,  neverthe- 
less, contains  no  certain  indication  of  the  intentions  of  the 
authors  of  the  constitution  on  this  question.  The  states 
are  forbidden  to  "make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts."  ^  The  question  was 
therefore  not  overlooked  by  the  Philadelphia  convention. 
But  what  conclusion  is  to  be  drawn  from  the  express  pro- 
hibition on  the  one  hand  and  silence  on  the  other?  Was 
there  no  need  of  prohibiting  congress  because  it  has  only 
the  powers  granted  it  ?  Or  may  the  disputed  power  be 
deduced  from  this  silence,  because  without  it  the  worth 
of  the  power  to  borrow  money  would  have  been  substan- 
tially diminished  and  this  poAver  was  granted  without 
any  limitation  ?  No  party  and  no  political  school  has 
ever  declared  it  to  be  a  general  principle  of  constitutional 
law  that  the  federal  government  must  be  authorized  to 
do  whatever  the  states  are  expressly  forbidden  to  do. 
And  the  very  matters  most  closely  related  to  the  question 
in  hand  are  not  so  treated  by  the  constitution  as  to  neces- 
sitate such  a  conclusion.  In  the  very  same  paragraph 
the  states  are  forbidden  to  coin  money,  but  although  this 
right  must  rest  somewhere  and  could  appertain  only  to 
the  federal  government  if  denied  the  states,  yet  the 
constitution  does    not  let   the    matter   rest    with  that 

1  Not  "their"  debts,  as  Schlief  (p.  469)  very  arbitrarily  translates 
this. 


12J:  COXSTITTTIOXAL    LAW    OF   THE    UNITED    STATES. 

express  ]>rohibition,  but  expressly  grants  congress  the 
]X)\ver  (art.  I.,  sec.  S,  §  5)  "to  coin  money,  to  regulate 
the  value  thereof  and  of  foreign  coin,''  ^     But  on  the 

'  Tlie  coinage  act  of  April  2,  1792,  provided  that  the  dollar  should 
have  371:J^  grains  of  pure  silver  (416  standard)  and  the  ten-dollar  gold 
piece,  the  eagle,  247^^  grains  of  pure  gold  (270  standard).  The  rela- 
tion of  gold  to  silver  was  fixed  at  1 :15.  The  disadvantages  which 
soon  arose  in  commerce  were  not  traced  back  to  the  principle  of  the 
"double  standard,"  but  were  attributed  simply  to  the  circumstance 
that  gold  had  been  valued  too  low.  This  difficulty  was  relieved  by  a 
law  of  J  me  28,  1834,  which  fixed  the  legal  proportion  of  the  two 
metals  at  1 :16.  Thereafter  the  eagle  was  to  contain  only  232  grains, 
pure  gold  (258  standard).  But  if  the  former  rule  prevented  the  coin- 
age of  gold,  the  silver  dollars,  now  above  par,  vanished  out  of  cir- 
culation still  more  rapidly.  A  new  coinage  act  of  Febiiiary  12,  1873, 
made  the  gold  dollar  the  unit  of  coinage,  but  did  not  change  the 
weight  or  fineness  of  gold  coin  (|1  equals  25.8  grains  troy).  The 
same  law  demonetized  the  silver  dollar,  i.  e.,  thereafter  only  silver 
coins  of  fifty  cents  or  less  and  also  a  new  coin,  420  grains  troy,  called 
the  trade  dollar,  because  it  was  struck  off  solely  in  the  interests  of 
trade  with  Asia,  were  issued.  The  reason  of  the  demonetization  of 
the  silver  dollar  was  because,  on  account  of  its  being  above  par,  it  had 
long  since  disapi)eared  from  circulation.  In  the  preparation  of  the 
Revised  Statutes,  which  became  law  June  20,  1874,  the  demonetiza- 
tion of  the  silver  dollar  —  probably  simply  by  an  oversight  —  was 
made  complete.  The  act  of  February  12, 1873.  had  provided  that  the 
silver  thereafter  coined  should  be  legal  tender  only  for  §5  or  less. 
The  Revised  Statutes  extended  this  provision  to  all  silver.  Scarcely 
had  the  act  of  Februar\-  12,  1873,  been  passed  than  the  value  of  silver 
began  to  sink  rai)iilly  in  consequence  of  the  extraordinary  yield  from 
the  mines  of  Nevada,  the  adoption  of  the  gold  standard  in  Germany, 
etc.  The  result  of  this  was  an  energetic  agitation  for  the  remonetiza- 
tion  of  silver,  which  speedily  won  over  public  opinion.  A  bill  which 
President  Hayes  had  refused  to  approve  became  a  law  Februarj-  28, 
1878.  The  secretary  of  the  treasury  was  directed  to  buy  every  month 
not  less  than  two  and  not  more  than  four  million  dollars'  worth  of  silver 
at  its  market  value  and  to  coin  it  into  silver  dollars.  The  efforts  to  put 
the  silver  into  circulation  have,  nevertheless,  had  only  scant  success. 
Of  tile  *175,355,829  coined  up  to  June  30,  1884,  only  ^9,794,913  could 
be  issued.     In  addition  to  this,  there  are  $96,427,011  of  "silver  certifi- 


THE    FEDERAL   CONSTITUTION.  125 

other  hand  the  states  are  forbidden  to  issue  "bills 
of  credit,"  and  the  right  of  the  federal  government  to 
do  so-  is  unquestioned,  although  this  right  was  not  ex- 
pressly granted  to  it,  but  is  merely  deduced  from  the 
authority  to  borrow  money.^  Yet  the  debates  of  the 
Philadelphia  convention  leave  it  very  doubtful  whether 
the  intention  was  to  giv^e  the  federal  government  the  right 
to  issue  paper  money.  An  express  grant  of  this  power 
was  in  the  draft  of  the  constitution  ^  and  was  stricken  out 
by  a  vote  of  nine  states  to  two.  The  views  of  the  dele- 
gates differed,  however,  as  to  what  rights  congress  would 
have  in  this  respect,  if  nothing  were  said  about  it.  The 
prevailing,  if  not  quite  unanimous,  view  was  that  congress 
would  not  be  able  to  make  the  federal  notes  a  legal  ten- 
der.'' On  the  other  hand  it  may  be  alleged  that  the  orig- 
inal idea  was  simply  to  forbid  the  states  to  issue  bills  of 

cates  "  which  are  received  in  payment  of  taxes  and  customs  by  the 
government.  There  is  a  growing  fear  that  the  government  will  soon 
be  no  longer  able  to  make  its  payments  in  gold,  and  that  then  there 
will  be  a  great  crisis.  President  Cleveland,  shortly  before  his  inaugu- 
ration, declared  himself  in  favor  of  the  discontinuance  of  the  coinage 
of  silver,  but  in  February,  1885,  both  houses  of  congress  defeated 
proposals  to  that  effect. 

1" Bills  of  credit''  are  simply  direct  obligations  of  the  state  in- 
tended to  circulate  as  money.  Bank-notes  do  not  fall  under  this 
description,  even  if  the  state  is  the  sole  holder  of  the  bank  stock. 
Craig  vs.  Missouri,  Peters,  IV. ,  410 ;  Briscoe  vs.  Bank  of  the  Common- 
wealth of  Kentucky,  Ibid.,  XL,  257 ;  Darrington  vs.  Bank  of  Ala- 
bama, Howard,  XIII.,  1?. 
2  "  And  emit  bills  on  the  credit  of  the  United  States." 
'  Madison  had  proposed  to  declare  this  expressly  instead  of  strik- 
ing out  the  clause,  but  thereafter  he  voted  to  strike  it  out  because 
he,  as  he  says,  had  convinced  himself  that  it  "would  not  disable 
the  government  from  the  use  of  public  notes,  as  far  as  they  could 
be  safe  and  proper ;  and  would  only  cut  off  the  pretext  for  a  paper 
currency,  and  particularly  for  making  the  bills  a  tender,  either  for 
public  or  private  debts."    Elliot's  Debates,  V.,  434,  435. 


lli!^  COXSTITrriOXAL    LAW    OF   THE    UNITED    STATES. 

credit  and  make  something  else  than  gold  and  silver  a  legal 
tender  when,  and  only  when,  congress  did  not  consent.' 
There  is  much  to  be  said  in  favor  of  the  view  that  this  is 
one  of  the  cases  where,  by  force  of  circumstances,  an 
actually  valid  constitutional  right  has  been  created  which 
runs  counter  to  the  true  intent  of  the  constitution.  This 
cannot,  however,  be  asserted  with  certainty.  The  pro- 
visions of  the  constitution  and  the  debates  of  the  Phila- 
delphia convention  show  beyond  doubt  that  the  intention 
was  to  place  the  entire  monetary  system  in  the  hands  of 
the  federal  government,  not  only  for  the  sake  of  uniform- 
ity but  because  the  states  were  distrusted.- 

1  Elliot's  Z)c6«fes,  Y.,  484. 

2  Here  it  must  be  noted  that  congress  is  expressly  authorized  to 
enact  penal  laws  against  counterfeiting  both  coin  and  paper  currency. 
Art.  I. ,  sec.  8,  g  6. 

The  national  debt  of  the  United  States  reached  its  highest  point  in 
1865.  It  was  then  $12,844,649,626.  At  the  close  of  the  fiscal  year 
1883-84,  it  had  been  reduced  to  .$1,830,528,923.  The  annual  payment 
of  interest  has  been  diminished  from  $150,977,697  in  1865  to 
$47,926,432  in  1884.  The  per  capita  debt  of  $78.25  in  1865  has  been 
reduced  to  $25.89  in  1884,  and  the  per  capita  interest  from  $4.29  to 
86  cents. 

The  history  of  paper  money  in  the  United  States  economically,  po- 
litically and  legally  has  formed  one  of  the  most  significant  chap- 
ters in  the  story  of  national  development.  Upon  the  recommendation 
of  the  first  secretary  of  the  treasury,  Alexander  Hamilton,  the  act 
of  February  25,  1791,  created  a  "Bank  of  the  United  States."  Its 
capital  was  not  to  exceed  $10,000,000  in  shares  of  $400,  of  which  the 
government  might  take  one-fifth,  in  consideration  of  which  it  was 
bound  to  receive  the  notes  of  the  bank  in  paytuent.  Its  franchise 
was  good  for  twenty  years.  When  the  bank  sought  a  renewal  it  was 
refused.  In  the  meantime  the  states  had  evaded  the  provisions  of 
the  constitution  which  forbade  them  to  issue  bills  of  credit  by  author- 
izing the  creation  of  banks  with  the  right  of  issuing  notes.  These 
small  banks,  the  jealous  complaints  of  which  had  much  to  do  with  pre- 
venting a  renewal  of  the  franchise  of  the  United  States  Bank,  now- 
had  a  free  field.    Like  mushrooms  after  a  warm  summer  shower,  they 


the  federal  constitution.  127 

§  37.  The  Budget  and  Administration  of  Finance. 
The  axiom,  that  "  the  purse  strings  must  be  in  the  hands 
of  the  representatives  of  the  people,"  i.  <?.,  of  the  legis- 
lature, the  Americans  obtained  from  England.  In  its 
application,  however,  it  has  undergone  an  important 
change  and  won  a  much  wider  range.  In  this  connection 
it  becomes  particularly  clear  and  evident  that  there  is  a 

sprung  into  existence,  and  very  often  did  business  in  a  most  extraor- 
dinary manner. 

The  "  wildcat  currency  "  period  still  survives  in  the  memory  of  the 
people.  Scarcely  was  the  United  States  Bank  dissolved  than  the 
United  States  had  to  create  a  substitute  for  its  notes.  Trouble  with 
England,  finally  leading  to  war,  produced  financial  embaiTassments 
which  induced  congress  in  1813  to  authorize  the  issue  of  interest- 
bearing  treasury  notes.  They  were  the  first  federal  notes  under  the 
constitution  of  1789,  which,  although  not  legal  tender,  were  never- 
theless issued  in  order  to  circulate  as  money.  In  1815  the  issuance  of 
non-interest-bearing  notes  was  begun.  The  cessation  of  cash  pay- 
ments in  almost  the  entire  country  and  the  innumerable  different 
bank-notes  produced  boundless  confusion.  The  report  of  the  secre- 
tary of  the  ti'easury  in  1815  says:  "  Hence  it  has  happened  (and  the 
duration  of  the  evil  is  without  any  limitation)  that,  however  ade- 
quate the  public  revenue  may  be  in  its  general  product  to  discharge 
the  public  engagements,  it  becomes  totally  inadequate  in  the  process 
of  its  application,  since  the  possession  of  public  funds  in  one  part  no 
longer  affords  the  evidence  of  a  fiscal  capacity  to  discharge  a  public 
debt  in  any  other  part  of  the  Union."  The  treasury  notes  varied  in 
market  value  in  different  portions  of  the  country  as  much  as  fifteen 
per  cent.  Congress  sought  to  stem  the  evil  by  creating  a  new  United 
States  bank,  again  for  a  period  of  twenty  years.  The  chief  provis- 
ions of  the  law  of  April  10,  1816,  were  as  follows :  There  was  a  capi- 
tal of  $55,000,000,  of  which  the  United  States  took  a  fifth ;  all  the 
government  oflBces  had  to  take  bank-notes  at  par;  the  bank  was 
bound,  under  heavy  penalties,  to  redeem  its  notes  in  coin;  the  gov- 
ernment funds  were  to  be  deposited  at  the  bank,  and  it  was  to  pay 
the  government  $1,500,000  annually  for  its  privileges. 

From  the  outset  the  bank  had  to  contend  with  difficulties  of  the 
most  diverse  kinds.  Vigorous  and,  in  part,  not  unfounded  complaints 
were  made  of  its  business  management,  and  President  Jackson  made 
its  annihilation  a  chief  end  of  his  administration.     When  the  bank 


128  COXSTITUTIOXAL    LAW    OF    THE    TNITED    STATES. 

substantial  difference  (in  the  proper  sense  of  this  word 
'•  substantial  "  )  between  what  is  called  in  Europe  the 
••  iiovernment  **  and  in  the  United  States  the"adminis- 
tration."  It  is  the  duty  of  the  president  and  certain 
organs  of  the  executive  authority  to  administer  the  af- 
fairs of  state  in  the  manner  prescribed  by  law.  But  so 
far  as  their  determination  is  concerned,  his  constitutional, 

in  1832  asked  for  tlie  renewal  of  its  franchise,  tlie  bill  was  passed  by 
congress,  but  vetoed  by  the  president  July  10.  The  bank  held,  it 
is  true,  a  charter  from  the  state  of  Pennsylvania,  but  was  neverthe- 
less unable  to  maintain  itself.  It  is  now  generally  accepted  as  a 
good  thing  that  the  connection  of  the  government  with  the  bank  was 
dissolved,  but  the  new  order  of  things  was  ushered  in  at  the  time  of 
a  general  bank  and  monetary  crisis.  When  the  conflict  between  the 
north  and  south  had  rii:)ened  into  a  catastrophe,  the  government  in 
its  embarrassment  laid  hold  of  the  means  vised  before  and  issued 
treasurj'  notes.  Besides  this  it  negotiated  a  number  of  loans  in  coin 
in  exchange  for  interest-bearing  bonds  from  the  state  banks  whose 
notes  were  at  par.  While  its  necessities  grew  apace  from  day  to  day 
to  gigantic  proportions,  it  nevertheless  continued  to  issue  treasury 
notes  and  refused  to  receive  the  bank-notes.  These  were  presented 
to  the  banks  in  large  amounts  for  redemption.  The  banks  thereupon, 
on  December  27,  1861,  suspended  cash  payments.  On  January  1, 
1862,  the  government  did  likewise.  Seci-etary  Chase  now  wished  to 
issue  irredeemable  paper  nioney.  The  law  of  Febniary  25,  1862, 
passed  after  a  long  debate,  authorized  the  government  to  issue 
$1.50,000,000  in  notes,  the  lowest  denomination  to  be  §5,  which  should 
be  "  legal  tender"  for  all  public  and  private  debts  then  existing  or 
thereafter  contracted,  and  exchangeable  for  six  per  cent,  bonds.  The 
import  duties  were  to  be  paid  in  gold.  Even  though  the  law  did  not 
explicitly  declare  it,  it  was  nevertheless  understood  that  the  sum  of 
$150,000,000  should  not  be  exceeded.  But  necessity  soon  compelled 
the  issuance  of  new  notes,  likewise  made  a  legal  tender ;  at  the  same 
time,  the  provision  forbidding  the  issue  of  notes  in  sums  less  than  $5 
was  repealed.  Moreover,  the  law  of  March  3,  1863,  authorized  inter- 
est-bearing notes ;  provided  that  the  right  to  exchange  the  paper  cur- 
rency for  six  per  cent,  bonds  at  par  should  lapse  July  1,  1863 ;  and 
burdened  the  notes  of  the  state  banks  with  a  tax  of  two  per  cent. 
But  this  taxation  was  not,  however,  the  only  means  with  which  the 
secretary  of  the  treasury  and  congress  attacked  the  sixteen  hundred 


THE   FEDERAL    CONSTITUTION.  129 

legal,  and  practical  influence  is  restricted  to  the  fact  that 
he  can  recommend  to  congress  such  measures  as  seem 
good  to  him,  and  that  by  refusing  to  approve  an  act  he 
can  put  before  congress  the  alternative  either  of  stopping 
the  wheels  of  government  in  whole  or  part  or  else  chang- 
ing its  conclusions,  unless  both  houses  by  a  two-thirds 
majority  persist  therein.     In  European  countries  one  of 

state  banks,  the  notes  of  which  at  the  beginning  of  the  war  com- 
prised the  largest  part  of  the  circulating  medium.  The  attack  was 
justified,  for  the  genuine  notes  were  about  seven  thousand  in  num- 
ber, and  the  counterfeits  —  Upton  distinguishes  between  "altered, 
spurious,  imitated,  and  other  kinds  more  or  less  fraudulent "—  also 
ran  up  among  the  thousands.  The  system  of  national  banks,  towards 
which  Chase  gave  the  first  impetus  in  December,  1861,  put  the  axe  to 
the  root  of  this  wretched  confusion.  The  first  law  about  the  national 
banks  (approved  February  25,  1863)  has  in  the  course  of  time  re- 
ceived manifold,  more  or  less  substantial,  amendments.  The  most 
important  of  the  provisions  in  force  at  present  are  the  following :  A 
minimum  capital  is  fixed,  which  increases  with  the  size  of  the  place ; 
a  minimum  number  of  stockholders  is  likewise  fixed ;  at  least  one- 
half  of  the  capital  must  be  paid  in  immediately,  and  the  rest  in 
monthly  instalments  of  at  least  ten  per  cent. ;  at  least  one-third  of 
the  paid-up  capital  is  to  be  deposited  with  the  treasurer  of  the  United 
States  in  the  form  of  interest-bearing,  registered  United  States  bonds ; 
for  ninety  per  centum  of  the  market  value  of  the  bonds  deposited  — 
provided  that  does  not  exceed  the  par  value  —  the  bank  receives 
notes  of  different  denominations  engraved  in  blank;  if  the  bank 
desires  to  diminish  the  note  circulation,  it  pays  the  United  States 
treasurer  "  legal  tender  notes,"  receiving  a  corresponding  amount  of 
its  bonds  on  deposit,  and  the  treasurer  redeems  the  notes  of  the  bank 
to  an  equal  amount  when  they  are  presented  to  him ;  each  bank  must 
deposit  an  amovmt  equal  to  five  per  cent,  of  its  notes  in  the  United 
States  treasury,  and  the  treasurer  uses  this  deposit  to  redeem  the 
notes  presented  to  him ;  every  national  bank  must  receive  the  notes 
of  every  other  national  bank  at  par ;  the  government  pays  out  the 
notes  at  par,  except  for  interest  on  the  public  debt;  the  notes  re- 
deemed by  the  treasurer  are  destroyed,  and  in  lieu  thereof  new  notes 
are  given  the  bank  upon  its  making  its  deposit  for  redemption  good ; 
no  limit  of  time  is  fixed  for  the  redemption  of  the  notes  of  banks 
which  have  ceased  to  exist  for  one  or  the  other  reason,  and  the  pait 
9 


130  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

the  chief  tasks  of  the  government  is  to  prepare  and  pre- 
sent the  budget.  The  legislature  must  accept  it,  after 
making  such  corrections  as  it  may  see  fit.  The  ministers 
are  free  to  escape  any  responsibility  for  these  corrections 
by  resigning.  In  the  United  States,  on  the  other  hand, 
so  far  as  the  constitution  is  concerned,  the  labor  and  the 
entire  responsibility  of  the  budget  rest  upon  congress. 
It  is  permitted  to  summon  the  organs  of  the  executive  to 
its  aid  as  much  and  in  whatever  way  it  may  see  fit.     Jf 

of  the  five  per  cent,  deposit  not  used  for  redemption  must  finally  fall 
to  the  United  States,  as  no  other  use  for  it  is  provided.  At  the  con- 
clusion of  the  civil  war  there  were  still  $143,000,000  of  the  state  bank 
notes  in  circulation,  against  $146,000,000  of  national  bank  notes. 
But  as  from  July  1,  1865,  the  state  banks  had  to  pay  a  tax  of  ten  jjer 
cent,  on  their  notes,  the  state  bank  currency  disappeared  entirely. 
All  the  notes  of  the  United  States  of  every  kind  whatever  added  to- 
gether reached  at  the  time  $695,000,000.  With  the  spring  of  1866. 
measures  were  taken  to  reduce  this  monstrous  mass  of  depreciated 
money.  The  speculations  of  the  exchanges  ran  the  price  of  gold  in 
a  wild  whirl  up  and  down  and  at  times  staggered  even  the  policy  of 
congress  and  of  the  administration.  Under  the  operation  of  the  gen- 
eral business  crisis  of  1873,  congress  resolved,  in  April,  1874,  to  in- 
crease the  amount  of  notes  outstanding,  but  Pi'esident  Grant  refused 
to  sign  the  bill.  An  act  of  January  14,  1875,  fixed  the  resumption  of 
specie  payments  for  January  1,  1879,  and  despite  all  opposing  prophe- 
cies this  was  carried  out  without  any  difficulties,  fourteen  and  a  half 
years  after  the  legal  tender  notes  had  sunk  to  about  one-third  of  their 
face  value.  (On  the  11th  day  of  July,  1864,  gold  was  quoted  at  its 
highest  point,  285.)  But  the  national  banking  system,  wliich  has 
finally  given  the  country  a  uniform  and  safe  cix'culating  medium, 
and  even  in  the  judgment  of  its  original  opponents  has  proved  itself 
of  substantial  excellence,  is  approaching  a  crisis.  The  basis  of  the 
system  is  the  deposit  of  United  States  bonds,  and  this  basis  is  being 
destroyed  by  the  rapid  extinction  of  the  public  debt  and  the  vigorous 
reduction  of  the  rate  of  interest.  See  E.  G.  Spaulding,  History  of 
Legal  Tender  Pai^er  Money,  2d  ed.,  Buffalo,  1875;  F.  Q.  Ball,  National 
Banks,  Chicago,  1881 ;  W.  G.  Sumner,  A  History  of  American  Cur- 
rency, N.  Y.,  1874;  J.  J.  Knox,  United  States  Notes,  1884;  J.  R. 
Upton,  Money  in  Politics,  Boston,  1884. 


THE  FEDERAL  CONSTITUTION.  131 

it  does  so,  in  so  far  as  it  makes  their  co-operation  a  legal 
duty,  it  imposes  a  legal  and  political  responsibility;  but 
the  constitutional  responsibility  belongs  to  congress  alone, 
i.  e.,  it  cannot  hide  itself  behind  the  cabinet.  As  the 
administration  can  present  no  bills,  and  consequently 
cannot  be  made  responsible  either  for  the  public  revenue 
or  for  the  manner  and  means  of  its  collection,  so  also, 
in  regard  to  the  public  expenditures,  it  can  make  no  de- 
mands, but  can  simply  work  out  estimates  of  expenses 
and  make  suggestions.  So  far  as  the  initiative  is  con- 
cerned, the  administration  has  no  will  of  its  own,  but 
only  an  opinion.  The  only  right  or  duty  the  secretaries 
can  have  in  the  matter  is  to  report  as  experts  upon  the 
business  aflFairs  of  the  state. 

After  making  such  a  report  —  when  congress  permits  or 
desires  it — the  whole  matter  is  constitutionally  and  legally 
at  an  end  from  the  standpoint  of  the  administration. 
The  president  and  the  heads  of  the  departments  cannot 
even  take  a  stand  against  a  proposition  which  is  opposed 
to  their  well  considered  recommendations,  while  it  is 
under  discussion  in  congress.  And  when  the  final  con- 
clusions of  congress  reach  the  president,  he  can  send  back 
the  bill  concerned  only  as  a  whole.  Only  the  particular 
bill,  and  not  the  whole  budget,  for  the  entire  budget  is 
not  framed  at  once.  The  appropriations  are  made  in 
groups,  each  of  which  is  covered  by  a  separate  so-called 
appropriation  bill.^  These  bills  always  originate  in  the 
house  of  representatives  and  they  are  in  fact  prepared  by 

iThe  legislative,  executive  and  judicial  expenses  appropriation; 
civil  expenses  appropriation;  consular  and  diplomatic  appropria- 
tions ;  army  appropriation ;  Indian  appropriation ;  pension  appropriar 
tiou;  military  academy  appropriation.  To  these  are  added  special 
appropriations  and  a  greater  or  less  number  of  deficiency  appropria- 
tions. 


lo2  COXSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

its  •'  committee  on  appropriations.'" '  They  must  emanate 
from  this  liouse,  because  the  constitution  provides:  "All 
bills  for  raising  revenue  shall  originate  in  the  house  of 
representatives." 

It  has  always  been  undisputed  in  the  United  States 
that  "  bills  for  raising  revenue  "  include  all  the  so-called 
'"  money  bills,"  but  there  have  often  been  different  views 
as  to  the  legitimate  application  of  this  doctrine.-  The 
house  of  representatives  has  always  asserted  that  its  func- 
tions embraced  the  framing  of  the  appropriation  bills,  and 
the  senate  has  never  succeeded  in  its  occasional  efforts  to 
maintain  the  contrar3^  A  literal  interpretation  of  the 
constitutional  provisions  must  evidently  decide  the  mat- 
ter against  the  claims  of  the  house  of  representatives, 
and,  too,  the  discussions  of  the  Philadelphia  convention 
tell  more  against  than  in  favor  of  these  claims.  But 
Seward  was  right  in  saying,  February  T,  1S5G,  in  the  sen- 
ate, that  the  fact  that  from  the  beginning  the  house 
claimed  the  framing  of  the  appropriation  bills  as  its  priv- 
ilege and  that  the  senate  did  not  contest  it,  was  weightier 
than  these  arguments.^  The  question  whether  the  doc- 
trine should  be  narrowed  or  widened  is,  however,  as  expe- 
rience has  taught,  one  without  practical  significance,  as 

1  The  committee  on  appropriations  bears  the  same  relation  to  the 
expenditures  that  the  committee  on  ways  and  means  does  to  the 
public  revenue.  There  are  thus  two  budget  commissions  and  no 
budget.  Congress  does  not  place  the  revenue  and  expenditures  in 
juxtaposition  and  thus  make  a  simple  whole  of  the  public  finances. 
How  far  congress  has  made  it  the  dutj'  of  the  secretary  of  the  treas- 
ury to  elaborate  a  sketch  of  the  budget  for  it,  was  explained  in  dis- 
cussing the  organization  of  the  treasury  department. 

'-'  See  especially  the  debate  in  April,  1873,  Congressional  Globe,  2d 
session,  42d  Congress,  p.  2105  et  seq. 

3  Cong.  Globe,  1st  sess.,  34th  Cong.,  376.  When  the  senate,  despit«! 
this,  sent  some  appropriation  bills  to  the  house,  the  latter  simply  laid 
them  on  the  table. 


THE   FEDERAL   CONSTITUTION.  ■    133 

the  constitution  itself  reduced  the  idea,  borrowed  from 
the  constitutional  law  of  England,  to  a  merely  formal 
privilege  of  the  house  of  representatives.  The  paragraph 
goes  on  to  say  that  "  the  senate  may  propose,  or  concur 
with,  amendments,  as  on  other  bills."  In  practice,  how- 
ever, the  privilege  of  the  house  of  representatives  has 
become  a  public  wrong  of  no  slight  consequence.  The 
senate's  amendments  are  not  discussed  in  the  house,  but 
simply  rejected.  The  senate  persists,  and  the  bill  is  re- 
ferred to  a  conference  committee  in  which  both  houses 
are  equally  represented.  The  proposals  of  this  committee 
cannot  be  amended.  They  must  be  adopted  or  rejected 
as  a  whole.  As  action  upon  them  is  generally  postponed 
until  towards  the  end  of  the  session,  the  house  adopts 
the  committee's  report,  because  it  shrinks  from  the  re- 
sponsibility of  letting  an  entire  appropriation  bill  go  to 
wreck  on  account  of  a  few  questions  of  detail.  .  While 
thus,  in  the  senate,  the  appropriations  suggested  by  the 
house  are  carefully  investigated,  amended  at  will  and  per- 
fected, the  house  by  its  own  beloved  rules  subjects  itself 
to  a  certain  moral  compulsion  by  which  it  is  forced  to 
assent  to  the  conclusions  reached  by  only  three  of  its 
members  and  a  like  number  of  senators.  Occasionally 
indeed,  one  of  the  general  appropriation  bills  has  failed 
to  pass.^  But  neither  of  the  houses  will  lightly  undertake 
this  responsibility,  because  the  constitution  provides  that 
no  money  shall  be  drawn  from  the  treasury  but  in  con- 
sequence of  appropriations  made  by  law  (art.  I.,  sec.  9,  §  7). 
The  administration  therefore  has  no  constitutional  right 
to  apply  the  moneys  in  the  treasury  to  meet  any  public 
needs  whatever,  even  if  they  be  the  most  urgent,  which 
congress  has  not  provided  for  by  making  appropriations. 
In  the  event,  therefore,  of  the  failure  of  an  appropriation 
1  See,  for  instance,  my  Constitutional  History,  V.,  414. 


134  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

bill,  a  most  wretched  and  unendurable  state  of  affairs 
must  quickly  come  to  pass. 

Even  under  the  most  favorable  circumstances  the  ad- 
ministration can  get  along  for  but  a  few  months,  because 
the  appropriations  are  made  only  for  one  year.  This  is 
not  due,  however,  to  any  constitutional  necessity.  On 
this  point  the  constitution  contains  only  the  provision 
that  congress  may  ''  raise  and  support  armies,  but  no  ap- 
propriation of  money  to  that  use  shall  be  for  a  longer 
term  than  two  years"  (art.  I.,  sec.  8,  §  12).  Congress, 
therefore,  unquestionably  has  a  right  to  substitute  a  bi- 
ennial for  the  annual  budget.  It  is,  however,  a  different 
question,  whether  the  provision  just  quoted  implies  the 
power  of  congress  —  except  as  to  the  army  —  to  have  a 
triennial  or  quadrennial  budget.  While  it  can  certainly 
make  appropriations  for  a  longer  time,  it  also  certainly 
cannot  frame  an  entire  budget  which  shall  be  good  for 
more  than  two  years.  And  it  can  make  one  good  for  two 
years  only  when  it  does  so  at  the  beginning  of  its  own 
existence.^  ]S^o  congress  can  bind  subsequent  congresses 
in  such  a  way  as  to  curtail  their  constitutional  ])owers. 
And  it  is,  moreover,  evident  not  only  that  no  congress 
would  permit  its  predecessor  to  deprive  it  of  its  right  of 
framing  a  budget,  but  that  it  could  not  constitutionally 
renounce  its  independent  exercise  of  this  right.     Even  a 

1  The  constitution  Iceeps  a  few  appropriations  beyond  the  control  of 
congress.  By  several  acts,  however,  the  number  of  the  so-called  "  jser- 
manent  appropriations  "  has  gradually  grown  to  between  twenty  and 
thirty.  Some  years  ago  the  senate  passed  a  bill  which  repealed  these 
altogether,  save  those  for  the  president's  salary,  the  salaries  of  the 
federal  judges  and  the  intei-est  on  the  public  debt.  The  assent  of 
the  house  of  representatives,  however,  could  not  be  obtained,  because 
the  bill  would  have  endangered  the  continuance  of  the  act  known 
as  the  "Bland  bill,"  whicli  requires  the  annual  coinage  of  at  least 
twenty-four  million  silver  dollars. 


THE   FEDERAL   CONSTITUTION.  135 

single  appropriation  extending  over  a  longer  period  must 
always  presuppose  the  tacit  sanction  of  the  new  congress. 
It  is  not  likely  that  these  questions  will  ever  become 
practical.  The  United  States  is  in  too  eminent  a  degree 
a  popular  state  to  let  it  seem  possible  that  one  congress 
would  ever  show  a  desire  to  usurp  the  prerogatives  of 
future  congresses  in  this  respect.  In  fact  the  annual 
framing  of  the  budget  was  probably  not  required  by  the 
constitution,  only  because  it  was  regarded  as  a  matter  of 
course. 

As  the  budget  is  fixed  annually,  the  statement  of  the 
public  revenue  and  expenditure,  which  must  be  published 
"  from  time  to  time  "  (art.  I.,  sec.  9,  §  6),  is  issued  every 
year.  The  total  revenue  for  the  fiscal  year  1883-84  was 
$848,519,869  (against  $398,287,581  in  the  preceding  year). 
The  chief  individual  sources  of  revenue  have  already 
been  mentioned.  Here  we  may  add  that  the  sale  of  pub- 
lic lands  yielded  $9,810,705.  The  income  from  land 
sales  exceeded  these  figures  only  in  the  three  years  1835, 
1836  and  1855,  in  the  two  former  very  considerably. 
But  in  the  other  years  as  a  rule  the  receipts  were  much 
smaller.  Congress  appropriated  for  the  fiscal  year 
1884-85  $137,451,398,  distributed  as  follows:  deficien- 
cies, $4,385,836;  legislative,  executive  and  judicial  ex- 
penses, $21,556,902;  sundry  civil  expenses,  $22,346,750; 
support  of  the  army,  $24,454,450 ;  naval  service  (for  only 
the  first  half  of  the  3'^ear),  $8,931,856;  Indian  service, 
$5,903,151;  rivers  and  harbors,  $14,948,300;  military 
academy,  $314,563;  forts  and  fortifications,  $700,000; 
pensions,  $20,810,000;  consular  and  diplomatic  service, 
$1,225,140;  agricultural  department,  $480,190;  District 
of  Columbia,  $3,594,256 ;  miscellaneous,  $7,800,004. 


136  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES, 

COMMERCE,  INTER-STATE  AND  NATIONAL.i 

§  38.  Trade  and  Commerce  scarcely  came  Avithin  the 
range  of  congress,  nnder  the  articles  of  confederation.' 
The  many  and  great  evils  result ino-  from  this  p-iive  the 
most  direct  and  vigorous  impetus  to  the  struggles  for  re- 
form which  led  to  the  Philadelphia  convention  and  to  the 
adoption  of  its  plan  for  a  constitution.  The  convention 
therefore  naturallv  considered  it  to  be  one  of  its  irreatest 
tasks  to  nationalize  the  Union  in  this  respect.  It  has 
been  rightly  said  that  the  consolidation  of  the  industrial 
interests  of  the  country  has  proved  to  be  the  strongest 
bond  of  the  federal  state. 

Congress  (says  art.  I.,  sec.  8,  §  3  of  the  constitution)  is 
authorized  "to  regulate  commerce  with  foreign  nations 
and  among  the  several  states  and  with  the  Indian  tribes."' 

IF.  Chamberlin,  American  Commercial  Lair,  Hartford,  1872;  R. 
Desty,  Commerce,  Navigation  and  Shipping  of  the  United  States. 
San  Francisco,  1880;  L.  Houck,  Laiv  of  Narigahle  Rivers,  Boston, 
1868;  J.  G.  Thompson,  Law  of  Highways,  3d  ed.,  Albany,  1881. 

^  So  far  as  trade  was  concerned,  only  that  with  the  Indians  was 
subject  to  its  control.  As  to  its  other  powers  in  regard  to  commerce, 
see  the  fourth  paragraph  of  article  IX. 

»Tlie  Indian  appears  in  the  constitution  only  here  and  in  the  pro- 
vision concerning  the  apportionment  of  the  number  of  members  of 
the  liouse  of  representatives  and  in  the  clause  about  direct  taxes.  The 
multifarious  powers  to  regulate  Indian  affairs  which  the  federal  gov- 
ernment has  claimed  and  exercised  must  therefore  be  constitution- 
ally based  on  all  sorts  of  other  constitutional  provisions.  Neither 
statesmen  nor  publicists  have  as  yet,  however,  taken  the  pains  to 
enter  into  the  complicated  (juestions  involved  therein  and  to  analyze 
and  explain  them.  In  ct)ngress  much  has  been  frequently  said  con- 
cerning this  or  that  question  of  law  and  the  federal  supreme  court 
has  reudeix'd  some  important  decisions.  In  general,  however,  the 
legal  side  of  the  problem  has  been  pushed  into  tlie  l)ackground  by  tiie 
practical.  In  respect  to  both  of  them,  as  Americans  themselves 
admit  without  reserve,  much  has  been  overlooked  and  much  seriously 


THE    FEDERAL   CONSTITUTION.  ,     137 

From  the  extremely  large  number  of  judicial  decisions  ren- 
dered in  interpretation  of  this  provision,  two  most  compre- 
hensive principles  are  to  be  deduced:   First,  the  word 

neglected.     The  first  cause  of  the  failures  and  mistakes  has  been  in 
no  small  degi-ee  the  lack  of  knowledge  of  and  care  for  the  fundamen- 
tal question  of  law.     Formal  treaties  have  been  concluded  with  the 
Indian  tribes,  as  if  they  were  independent  nations  with  equal  rights 
with  whom  and  towai'ds  which  the  United  States  had  an  international 
relation.    Yet,  as  a  matter  of  fact,  no  such  position  has  been  granted 
them.     It  could  not  be  granted.     Urged  on  by  the  development  of 
circumstances  and  by  the  fact  that  the  domains  of  the  tribes  formed 
a  constituent  part  of  the  territory  of  the  Union,  the  government  fell 
more  and  more  into  contradictions  in  its  own  actions  towards  the 
Indian  and  piled  injustice  upon  injustice.     By  degrees  men  became 
aware  of  the  blunders  of  the  fathers  of  the  republic.     The  law  of 
March  3,  1871,  put  an  end  to  further  danger  from  this  source.     This 
law  provided  that  in  future  no  treaties  should  be  concluded  with  the 
Indians,  because  they,  as  it  expressly  stated,  are  not  independent  na- 
tions.    This  put  what  are  left  of  the  unfortunate  aborigines  in  a  legal 
relation  to  the  federal  government  corresiwnding  with  their  actual 
one :  They  are  wards  who  must  be  cared  for  so  far  as  equity  and  hu- 
manity demand  on  the  one  hand,  but  on  the  other  with  due  regard 
to  the  demands  of  civilization  as  it  sweeps  over  the  continent.     They 
are  still  treated  upon  the  theory  that  they  are  to  be  isolated  as  far  as 
possible.     Their  domains  are  reservations.     The  largest  is  Indian  Ter- 
ritory, vs'hich  has  a  very  peculiar  status.     It  embraces  over  seventy 
thousand  square  miles,  is  bomided  on  the  south  by  Texas  and  the 
Red  river,  on  the  east  by  Arkansas,  on  the  north  by  Kansas,  and  on 
the  west  by  Texas  and  New  Mexico.     A  large  number  of  tribes  in- 
habit it  and  have  legal  relations  with  one  another.     The  United 
States  has  only  "  executive  jurisdiction,"  but  certain  law  questions 
fall  within  its  sphere  to  decide,     A  fuller  discussion  of  the  very  pe- 
culiar structure  of  this  semi-barbaric  pseudo-state  of  the  Union  would 
be  out  of  place  here.     Only  the  most  important  matters  as  to  the  reg- 
ulation of  Indian  affairs  can  be  brought  forward.     All  tribes  which 
have  come  to  an  agreement  with  the  United  States  have  then-  own 
districts,  called  reservations,  which  are  sprinkled  over  the  states  and 
territories.     The  government  is  represented  among  the  tribes  by 
"agepts"  (and  sub-agents),  over  whom  are  "superintendents"  and 
"  inspectoi's,"    At  the  head  of  the  entire  office  of  Indian  affairs,  form- 
ing a  part  of  the  department  of  the  interior,  is  a  commissioner.    The 


138  CONSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

"commerce"  has  not  the  same  signification  as  trnlTic,  pur- 
chase and  sale,  i.  e.,  as  "  trade  "  in  its  more  Hmited  sense,  but 
inchides  also  the  idea  of  "transportation."  The  author- 
agents  must  give  a  bond,  the  amount  of  which  is  fixed  by  the  presi- 
dent and  the  secretary  of  the  interior.  They  must  reside  at  a  place 
fixed  by  the  president  within  the  limits  of  their  reservation,  or  in  its 
immechate  vicinity,  and  must  not  leave  tlieir  reservation  witliout  per- 
mission. Neither  they  nor  tlie  otlier  officials  of  the  Indian  service 
are  permitted  to  be  interested  in  any  business  whatever  with  the 
Indians  under  a  penalty  of  §5,000.  Trade  can  be  carried  on  with  tlie 
Imlians  only  by  citizens  of  the  United  States,  and  these  must  give 
bond  in  the  sum  of  .^."i.OOO  to  $10,000  and  procure  a  license,  which  can 
at  an}-  time  be  revoked  by  the  superintendent,  whenever  ho  is  con- 
vinced that  the  particular  person  is  objectionable.  The  purchase  of 
iraijlements  of  the  chase,  and  under  some  circumstances  also  the  sale 
of  weapons  and  ammunition,  are  subject  to  all  sorts  of  restrictions. 
The  sale,  manufacture  and  introduction  of  intoxicating-  liquors  on 
the  reservations  are  most  strictly  forbidden.  In  order  to  prevent  the 
violation  of  these  rules,  a  comprehensive  right  of  search  is  granted 
to  the  agents.  Whoever  carries  on  business  without  a  lic.ease  for- 
feits, in  addition  to  all  his  merchandise,  the  sum  of  $5U0.  Contracts 
can  be  made  only  with  all  sorts  of  formalities.  As  a  general  rule,  the 
purchase  of  land  is  not  permitted.  A  man  who  trys  to  bu}-  land  or 
surveys  land  in  the  reservation  is  liable  to  fine.  Outsiders  can  enter  a 
reservation,  only  if  provided  with  a  pass,  and  no  one  is  permitted  to 
settle  there.  Trespassers  are  expelled  if  necessary  by  the  military. 
Any  one  who  returns  after  being  exjielled  must  jjay  a  fine  of  $1,000. 
The  right  of  hunting  and  gi-azing  in  the  reservations  belongs  solely 
to  the  Indians.  Crimes  are  punished  according  to  the  laws  of  the 
jjlaces  wherehi  the  United  States  have  exclusive  jurisdiction.  The 
Indian  appropriation  was  .$5,903,151  in  1884.  The  greater  part  of  this 
is  used  in  paying  the  tribes  the  moneys  granted  them  and  in  supply- 
ing them  witli  clotliing,  cattle,  etc.  In  part  it  is  a  payment  lor  lands 
ceded  by  the  Indians  according  to  tx'eaties  or  otlier  agreenients  and 
ui  part  a  gift  without  any  legal  obligation  whatever.  Without  such 
assistance  most  of  the  tribes  would  soon  succumb  to  hunger  and  mis- 
ery. The  federal  government  seeks  by  gifts  to  raise  them  gradually 
to  such  a  degree  of  civilization  that  they  will  become  able  to  support 
themselves.  A  business  spirit  has  been  stimulated  by  presenting  in- 
dividuals among  tliem  with  cattle  and  rewarding  them  for  the 
increase.     In  a  similar  manner,  attempts  are  made  to  encourage  agri- 


THE   FEDERAL   CONSTITUTION.  139 

ity  of  congress  extends  to  all  international  and  inter- 
state commerce,^  embracing  all  the  means  as  well  as  the 
subjects  thereof,  including  persons  in  either  capacity.'^ 
Second,  with  commerce  within  the  limits  of  one  single 
individual  state,  congress  has  nothing  to  do.  Thus  if  the 
authority  of  congress  is  far-reaching,  it  is  nevertheless 
restricted,  and  the  precise  demarcation  of  its  limits  is  for 
various  reasons  not  an  easy  matter. 

Among  the  infinite  possibilities  presented  by  the  occur- 
rences of  real  life,  it  is  often  very  difficult  to  draw  the 
line  of  distinction  just  indicated.  The  exclusive  author- 
ity of  the  separate  and  individual  state  is  not  under  all 
circumstances  co-extensive  with  its  geographical  limits, 

culture.  In  general  the  efforts  of  the  government  are  directed  towards 
dissolving  the  tribal  relation  and  substituting  the  institution  of  indi- 
vidual property.  New  sources  of  industry  were  opened  to  these 
people  and  their  self-respect  heightened  by  placing  in  their  own  hands 
the  distribution  of  the  government  goods  and  by  organizing  from 
their  midst  an  Indian  police  force.  And  finally  a  number  of  schools 
liave  been  successfully  opened,  in  which  the  instruction  given  is  espe- 
cially adapted  to  their  peculiar  mental  and  bodily  dispositions  and 
desires.  The  good  results  of  all  these  measures  ai'e  already  very  no- 
ticeable. They  have  brought  about  a  new  era  in  the  Indian  policy. 
A  great  pai't  of  the  credit  belongs  to  Carl  Schurz,  who,  as  secretary 
of  the  interior  under  President  Hayes,  took  especially  to  heart  the 
cai-e  of  the  Indians.  Still,  only  the  beginning  has  been  made  of  a 
more  humane  and  just  policy,  corresponding  better  with  the  true  in- 
terests of  both  parties ;  and  the  government  has  no  little  trouble  in 
enforcing  even  the  laws  which  now  exist.  It  is  not  easy  to  impress 
the  rough  and  reckless  pioneer  population  with  the  idea  that  the  . 
Indians  have  any  rights  which  must  be  respected.  At  tlie  moment  I 
write,  it  has  become  necessary  to  repel  by  force  illegal  invasion  of 
the  Indian  Territory  and  of  the  other  reservations. 

1  Gibbons  vs.  Ogden,  Wheaton,  IX.,  189. 

2  37te  Passenger  Cases,  Howard,  VII.,  283.  Five  judges  declare 
themselves  against  the  view  expressed  by  Judge  Barbour  in  the 
earlier  case  of  Neio  York  vs.  Miln  (Peters,  XI.,  102),  that  persons  could 
not  be  "  the  subject  of  commerce." 


'140  COXSTITUTIONAL    LAW    OF    THE    TXITED    STATES. 

oven  when  these  limits  are  in  no  wise  overstepped  in  the 
case  in  question.  Thus,  for  instance,  in  1S51,  the  supreme 
court  decided  that  Virginia  had  no  right  to  permit  a 
company  to  put  a  suspension  bridge  over  the  Ohio  river 
at  "Wlieeling  (when  the  stream  Avas  entirel\'  within  the 
territorial  limits  of  the  state)  so  as  to  interfere  with  nav- 
igation, because  the  Ohio  was  a  navigable  water  way 
between  different  states,  and  congress  must  regulate  inter- 
state commerce,  and  that  commerce  included  navigation.^ 
In  other  cases,  however,  it  has  been  decided  that  the 
states,  if  congress  has  not  exerted  its  legislative  author- 
ity, can  permit  the  building  of  a  bridge  over  a  navigable 
stream  fiowin"-  whollv  within  their  iurisdictions.  even  if 
it  interferes  with  navigation.  These  decisions  were  based 
upon  the  fact  that  bridges  as  well  as  navigable  streams 
are  means  of  commerce,  and  that  the  states  must  be  able 
to  determine  whether  and  how  far  commerce  across  the 
water  should  be  preferred  to  commerce  on  the  water.- 
Finally,  the  right  of  the  states  to  build  bridges  or  let 
them  be  built  over  navigable  streams  within  their  limits, 
when  there  was  no  interference  with  navigation,  has  been 
repeatedly  acknowledged.  Whether  there  is  or  is  not  such 
interference  is  a  question  of  fact  that  must,  in  ever}^  in- 
stance, be  decided  with  regard  to  the  circumstances  of 
the  particular  case.^ 

1  Howard,  XIII.,  518.  But  when  congress  legalized  the  bridge,  as 
built,  a  suit  brought  by  the  state  of  Pennsylvania  was  dismissed  by 
the  supreme  court  because  the  assertion  of  an  interference  with  navi- 
gation, accepted  as  valid  by  the  court,  had  not  been  made  good  before 
congress. 

"^Gilman  vs.  Philadelphia,  Wallace,  III.,  713;  The  Passaic  Bridges, 
Ibid.,  782. 

3  See  Wilson  vs.  Blackbird  Creek  Covxpany,  Peters,  II.,  245,  as  well 
as  the  remarks  of  Justice  McLean  (Howard,  VII.,  397,  398),  and  Jus- 
tice Clifford  (Wallace,  III.,  743),  upon  this  decision. 


THE   FEDERA.L   CONSTITUTION.  141 

Further  difficulties  arise  out  of  the  question  whether 
and  how  far  the  constitutional  authorit}'^  of  congress  is 
an  exclusive  one,  i.  e.,  whether  and  how  far  the  states 
possess  concurrent  power.  When  congress  enacts  a  law, 
then,  according  to  the  judicial  decisions,  all  state  legisla- 
tion is  overruled,  even  if  it  does  not  immediately  concern 
the  same  subject-matter.^  Strictly  taken,  the  authority 
of  congress  is  an  "exclusive"  one,  and  a  "concurrent" 
power  of  the  states  cannot  be  recognized.-  But,  in  spite 
of  this,  legislative  action  on  the  part  of  the  states,  within 
the  range  of  the  constitutional  authority  of  congress,  is 
admissible.  If  congress  has  not  made  use  of  its  powers, 
the  inference  may  be  drawn  either  that  it  does  not  wish 
any  legislation  on  the  matters  in  question,  or  else  that  it 
wishes  to  let  the  particular  local  circumstances  control, 
and  that  it  therefore  commits  the  matter  to  the  states  or 
state  concerned.  Thus,  for  instance,  if  congress  were  en- 
titled to  enact  a  general  pilot  law  on  the  ground  that  the 
pilot  system  belongs  to  navigation,  and  the  regulation  of 
navigation  is  included  in  the  right  to  regulate  commerce, 
and  if  it  should  nevertheless  refuse  to  enact  such  a  law, 
it  would  thereby  say  that  it  does  not  regard  the  pilot 
system  as  adapted  to  a  general  and  entirely  homogenous 
regulation.  In  such  a  case  the  state  laws  concerning 
pilotage  could  not  be  declared  to  be  unconstitutional  en- 
croachments upon  the  domain  of  congress.'  The  states 
are  by  no  means  always  entitled  to  legislate,  if,  and  so 

1  The  Passenger  Cases,  Howard,  VII.,  283.  The  reasons  for  the  de- 
cision of  the  court  aa  such  were  not  given  in  this  case ;  only  the  indi- 
vidual judges  gave  reasons ;  but  five  of  them  maintained  the  opinion 
stated  in  the  text. 

2  See  Judge  McLean's  remarks  in  the  Passenger  Cases,  cited  supra, 
upon  Marshall's  decision  in  Gibbons  vs.  Ogden,  and  Story's  reference 
thereto  in  New  York  vs.  Miln. 

3  Cooley  vs.  The  Port  Wardens,  Howard,  XII.,  299. 


14:'2  CONSTITUTIONAL    LAW    OF    THE    UNI  I  ED    STATES. 

long  as,  congress  does  not  exercise  its  authority,  but  ac- 
cording to  the  above  decision  the  exclusiveness  of  the 
authority  of  congress  is  not  always  absolute.  In  what 
case  it  is  or  is  not  to  be  regarded  as  such  is  manifestly 
not  always  quite  certain  from  a  legal  standpoint.  The 
courts  must  base  their  decision  more  or  less  upon  consid- 
erations of  a  practical  political  nature,  and  therefore  it 
may  often  be  highly  doubtful  to  which  category  the  case 
in  hand  shinild  be  referred. 

Difficulties  grow  apace  because,  as  the  federal  supreme 
court  has  decided,  "  it  is  not  everything  that  affects  com- 
merce that  amounts  to  a  regulation  of  it,  within  the 
meaning  of  the  constitution;  "  ^  and  the  states,  moreover, 
liave  certain  powers  by  the  exercise  of  which  they  may 
very  easily  come  into  conflict  with  the  congressional  leg- 
islation which  regulates  commerce.  First  and  foremost 
of  these  are  the  police  powei's  of  the  states.  Drawing 
tlie  line  up  to  which  a  direct  or  indirect  invasion  of  the 
province  of  congressional  legislation  on  trade  and  com- 
merce will  be  acknowledged  as  authorized,  must  neces- 
sarily be  a  somewhat  arbitrary  process.  Thus,  for  in- 
stance, health  and  quarantine  laws  fall  within  the  domain 
of  the  state.''  It  is  very  evident,  however,  that  such  laws 
could  rcadih^  be  made  to  interfere  with  many  of  the  provis- 
ions of  congressional  legislation  about  trade  and  commerce. 
Moreover  the  supreme  court  in  the  License  Cases  (How- 
ard, Y.,  504)  decided  that  tlie  states  might,  under  certain 
^  restrictions,  require  the  trade  in  liquors  imported  or 
brought  from  another  state  to  be  licensed,  while  in  an 
,-/>■'  older  case  {Brown  vs.  Maryland,  Wheaton,  XII.,  419)  it 

was  decided  that  in  general  the  importer's  right  of  sale 
must  not  be  interfered  with  by  the  state's  requiring  him 

estate  Tax  on  Railway  Gross  Receipts,  Wallace,  XV.,  293. 
'^Qibbons  vs.  Ogden,  Howard,  IX.,  203. 


THE   FEDERAL   CONSTITUTION,  143 

to  buy  a  license.  The  judges,  however,  assigned  the 
most  diverse  reasons  for  their  decision  in  the  License 
Cases.  And  it  can  by  no  means  be  discovered  from  these 
reasons  how  far  the  states  may  go  in  the  exercise  of  their 
police  power  in  restricting  commerce  in  articles  which 
they  regard,  for  anv  reason  whatever,  as  injurious  or  dan- 
gerous to  the  community.  Similar  conflicts  may  arise 
from  the  right  of  taxation  possessed  by  the  states.  In 
inter-state  or  international  commerce,  neither  the  goods 
nor  the  transportation  of  property  or  persons  can  be 
taxed  by  the  states.'  But  the  business  as  such  and  the 
capital  used  in  it  are  subject  to  the  state's  right  of  taxa- 
tion. The  correctness  of  this  principle  certainly  cannot 
be  attacked,  but  just  as  little  can  it  be  disputed  that  it 
gives  the  states  the  power  of  encroaching  very  seriously 
upon  the  congressional  domain,  if  they  are  only  careful 
about  the  way  in  which  they  do  so.-  The  courts  indeed 
are  in  nowise  bound  to  permit  the  simple  question  of  the 
suflBciency  of  the  form  in  which  a  state  carries  out  its 
right  of  taxation  to  determine  their  decisions,  and  they 
do  not  do  so.  As  soon  as  they  enter  upon  the  question, 
whether  the  tax-laws  of  a  state  materially  encroach  upon 
the  right  of  reg-ulating  international  and  inter-state  com- 
merce,  subjective  views  are  again  given  more  or  less 
sway.        ^ 

These  observations  will  be  sufficient  to  show  why  an 
accurate  judgment  of  the  extent  of  this  constitutional 
provision  in  all  its  ramifications  is  possible  only  in  con- 
nection with  all  the  judicial  decisions  to  which  it  has 

estate  Freight  Tax,  Wallace,  XV.,  232;  The  Passenger  Cases,  How- 
ard, VII.,  283. 

2  How  ea,sily  and  in  what  various  ways  this  may  occur  will  be  suf- 
ficiently indicated  by  pointing  to  the  decision  in  Liverpool  Insurance 
Company  vs.  Massachusetts,  Wallace,  X.,  566,  according  to  which  a 
state  can  tax  a  foreign  corporation  higher  than  similar  corporations 
created  by  its  own  laws. 


1-1:4  COXSTITL'TIOXAL    LAAV    OF   THE    UNITED    STATES. 

given  rise.  And  they  also  show  why  no  general  and 
fixed  commercial  law,  in  the  European  sense  of  the  word, 
has  been  developed  in  the  United  States.  The  narrow 
frame  of  this  work  makes  it  necessary  to  let  this  suiBce 
and  only  to  mention  brief!}''  the  matters  subject  to  the 
authority  of  congress,  under  this  general  provision,  either 
by  force  of  custom  or  of  judicial  decisions. 

This  authority  extends  to  the  places,  the  means  and  the 
subjects  of  trade  and  commerce. 

As  to  the  places,  congress  must  not  only  provide  where, 
under  what  conditions,  and  how  certain  events  in  interna- 
tional and  inter-state  commerce  —  such  as  the  departure 
and  arrival  of  vessels,  the  discharge  of  their  freight,  the 
payment  of  duties,  etc. —  shall  take  place,  but  it  must 
also  take  care  that  the  places  meet  the  demands  of  com- 
merce and  trade.  That  is,  it  must  put  and  keep  the  har- 
i)ors  in  good  condition,  must  improve  the  navigability  of 
the  rivers,  must  build  light-houses,  piers,  etc. 

As  to  the  means,  the  principle  prevails  that  the  author- 
ity of  congress  is  not  restricted  to  those  means  which 
were  known  and  in  use  at  the  time  of  the  adoption  of  the 
constitution.  Steamboat  and  railroad  traffic  and  the  tel- 
egraph s\\stem  are  as  much  subject  to  congressional  regu- 
lation as  were  the  media  of  commercial  intercourse  of 
earlier  times.  Its  powers  "  keep  pace  with  the  progress 
of  the  country  and  adapt  themselves  to  the  new  develop- 
ments of  time  and  circumstances.  ...  As  they  were 
entrusted  to  the  general  government  for  the  good  of  the 
nation,  it  is  not  only  the  right  but  the  duty  of  congress 
to  see  to  it  that  intercourse  among  the  states  and  the 
transmission  of  intelligence  are  not  obstructed  or  unnec- 
essarily encumbered  by  state  legislation." '  Whether  and 
how  far  congress  is  entitled  to  itself  provide  media  of 

^Pemacola  Tel.  Co.  vs.  Western  Union  Tel.  Co.,  Otto,  VI.,  124;  Coo- 
ley,  Principles,  65,  66. 


THE   FEDERAL   CONSTITUTION.  145 

commerce,  i.  e.,  to  establish  highways,  to  build  or  mate- 
rially aid  in  building  railroads,  etc.,  is  one  of  the  oldest 
and  most  important  questions,  and  one  which  has  not  yet 
received  a  final  and  comprehensive  legal  decision.  But 
the  tendency  of  actual  development  has  always  been  to- 
wards the  subordination  of  legal  arguments  to  consider- 
ations of  expediency.  On  the  other  hand  the  power  of 
congress  to  use  its  authority  to  regulate  trade  in  such  a 
way  as  to  indirectly  accomplish  other  objects  is  generally 
recognized.^  Congress  has  done  this  in  the  numerous 
laws  usually  referred  to  under  the  name  of  registration 
and  navigation  laws.  These  are  in  great  part  designed 
to  give  American  ship-builders  and  ship-owners  an  advan- 
tage over  their  foreign  competitors.  To  the  power  to 
regulate  the  means  of  commerce  we  must  also  refer  the 
laws  as  to  building  and  outfitting  of  vessels,  the  number 
and  safety  of  the  crews,  as  well  as  of  the  passengers,  the 
discipline,  the  legal  rights  and  duties  of  the  sailors,  etc.- 

1  How  far  congress  may  do  this  has,  however,  been  a  hotly  con- 
tested question  in  the  battles  between  protection  and  free  trade. 

-  The  influence  of  the  federal  government  upon  the  means  of  com- 
mercial intercourse  —  apart  from  those  used  in  navigation  —  has  been 
up  to  the  present  time  comparatively  very  limited.  As  to  the  rail- 
roads, it  has  reserved  a  somewhat  more  comprehensive  power  only  as 
to  the  roads  in  the  construction  of  which,  to  be  discussed  further  on, 
it  assisted  in  part.  In  the  discharge  of  its  constitutional  duties,  in 
which  it  could  not  do  without  the  railroads,  as  in  the  carrymg  of  the 
mails,  congress  promptly  used  its  legislative  powers  as  far  as  the  pub- 
lic interests  seemed  to  demand.  But  as  to  the  rest,  the  federal  laws 
contain  little  more  in  reference  to  the  railroads  than  the  provisions 
that  relate  to  all  "common  carriei-s."  But  that  this  is  not  due  to  any 
doubts  as  to  its  own  authority  is  plain  from  the  act  of  March  3,  1873, 
which  was  dictated  solely  by  a  humanitarian  regard  for  the  rest, 
feeding  and  watering  of  cattle  transported  by  rail  or  water.  (Stat, 
at  Large,  XVII.,  584,  585.)  For  years,  however,  congress  has  debated 
a  considerable  number  of  proposed  laws  of  every  kind  which  cut 
deeply  into  the  autonomy  of  railroad  companies  and  in  part  also 
10 


146  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

Under  the  authority  of  congress  as  to  the  subjects  of 
commercial  intercourse,  the  laws  which  regulate  the  im- 
port and  export  of  certain  commodities  and  the  move- 
ments of  certain  persons  have  been  passed.  Many  of  the 
powers  of  congress  under  this  division  of  its  authority 
enure  also  to  the  states  from  their  police  power.  Restric- 
tions on  the  importation  of  poisons  and  explosives,  pro- 
hibitions of  the  introduction  of  indecent  publications  and 
pictures,  etc.,  could  be  imposed  also  by  the  states.  The 
application  of  the  principles  of  constitutional  law  in  this 
respect  may  easily  lead  in  disputed  questions  to  no  slight 
difficulties.  As  far  as  persons  are  concerned,  the  author- 
sharply  invade  the  reahn  of  legislation  which  the  states  have  thus 
far  been  permitted  to  monopolize.  The  opposition  of  material  inter- 
ests, however,  and  especially  the  general  political  considerations 
against  such  action,  have  thus  far  defeated  every  effort  for  a  more 
uniform  regulation  of  the  railroad  system  by  federal  legislation.  As 
late  as  the  spring  of  1884,  congress  considered,  but  again  without  re- 
sult, a  number  of  proposals  as  to  railroad  freights,  a  matter  which 
Leyen  justly  designates  as  the  "  true  germinal  point  of  the  so-called 
railroad  question  "  in  the  United  States.  It  will  probably  depend  to 
a  large  extent  upon  the  conduct  of  the  railroad  companies  themselves 
as  to  whether,  or  how  soon,  the  tendency  manifested  by  such  at- 
tempts at  legislation  will  finally,  however,  begin  to  triumph  over 
difficulties  to  be  overcome.  What  decisive  action  congress  might 
think  itself  authorized  to  take,  under  certain  circumstances,  appears 
from  the  act  of  January  31,  1862,  which  authorized  the  president  to 
take  possession  of  all  railroads  and  telegi-aph  lines,  as  far  as  he 
thought  public  safety  required,  and  invested  the  secretai-y  of  war 
with  sole  control  of  the  transportation  of  troops  and  of  all  military 
stores.  {Stat,  at  Large,  XII.,  334.)  See  J.  F.  Lacey,  Digest  of 
American  Railway  Decisions,  Chicago,  1875;  E.  L.  Pierce,  Law  of 
Railroads,  Boston,  1881 ;  D.  Rorer,  A  Treatise  on  the  Law  of  Rail- 
icays,  2  vols.,  Chicago,  1884;  A.  v.  d.  Leyen,  Die  Xordamerikanischen 
Eisenbahnen  in  ihrenvnrthschaftlichen  und  poUtischen  Beziehungen, 
Leipzig,  1885. 

As  to  the  telegraph  companies,  the  federal  government  has  some- 
what more  extensive  rights.     An  act  of  July  24, 1866,  grants  the  tek  - 


THE    FEDERAL   CONSTITUTION.  147 

ity  of  the  states  goes  to  the  full  extent  required  by  the 
"law  of  preservation."  As  they  may  protect  themselves 
by  their  health  and  quarantine  laws  against  the  introduc- 
tion of  contagious  disease,  so  they  may  guard  themselves 
likewise  against  the  "  moral  pest "  of  vagabonds,  paupers 
and  criminals.  But  apart  from  this  the  regulation  of 
immigration  is  the  exclusive  domain  of  congress.  Thus, 
for  example,  a  state  cannot  prohibit  the  immigration  of  per- 
sons (Chinese,  for  instance)  because  it  fears  that  they  will 
not  obey  the  laws,  or  because  it  regards  them,  for  economic 
or  other  political  reasons,  as  a  pernicious  element  of  the 

graph  companies  organized  under  state  laws  the  right  of  way  along 
post-roads  or  military  lines,  along  navigable  streams  and  over  public 
lands,  and  permits  them  to  take  from  the  public  domain  wood,  stone 
and  other  material  for  the  building  of  their  lines  and  station-houses, 
provided  they  bind  themselves  to  send  government  telegrams  ahead 
of  all  other  dispatches  at  rates  fixed  by  the  postmaster-general,  and 
to  sell  their  lines  upon  demand  by  the  government  to  the  United 
States,  at  a  price  to  be  determined  by  five  impartial  men,  two  of 
them  named  by  the  postmaster-general,  two  by  the  company,  and 
the  fifth  by  the  four.  I  am  not,  however,  aware  that  any  telegraph 
line  has  actually  been  bought  under  this  law.  Telegraphs  and  rail- 
roads are  both  still  private  enterprises  and  private  property,  but  the 
continuous  consolidation  of  these  important  instruments  of  com- 
merce in  the  hands  of  mammoth  corporations  disturbs  public  opinion 
more  and  more.  Discontent  is  widespread  and  has  at  times  attained 
such  proportions  that  the  "monopolies"  would  probably  have  been 
already  broken,  if  it  were  clear  what  should  take  the  place  of  the  ex- 
isting circumstances,  and  if  an  agreement  could  be  reached  on  this 
point.  As  long  as  the  appointment  of  nearly  fifty  thousand  post- 
masters is  not  wholly  withdrawn  from  party  politics,  the  thoughtful 
part  of  the  people  will  scarcely  be  persuaded  to  add  to  the  post- 
office  department  the  telegraph  employees,  who  are  counted  by 
tens  of  thousands  (the  Western  Union  Telegraph  Company  alone 
had,  in  1883,  twelve  thousand  nine  hundred  and  seventeen).  Pres- 
ident Grant  recommended  this  in  his  annual  message  of  December, 
1871. 


14S  CONSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

population.^  Whenever  congress  exercises  its  legislative 
authority  in  this  respect,  it  must  always  be  in  a  general 
way,  treating  all  the  states  alike.-  This  is,  indeed,  no- 
where expressly  declared ;  but  it  would  be  opposed  to  the 
general  si)irit  of  the  constitution  to  give  certain  parts  of  the 
Union  a  separate  and  distinct  position,  because  this  would 
too  readily  excite  at  least  the  suspicion  that  the  conclu- 
sions of  congress  were  influenced  by  partiality  for  one 
section  or  dislike  of  another. 

So  far  as  the  regulation  of  trade  is  concerned,  this 
fundamental  doctrine  of  complete  equality  is  expressly 
ordained  in  regard  to  certain  matters.  Art.  I.,  sec.  9,  §  5, 
provides  that  "  no  preference  shall  be  given  by  any  regu- 
lation of  commerce  or  revenue  to  the  ports  of  one  state 
over  those  of  another.''  And  it  declares  further:  "Xor 
shall  vessels  bound  to  or  from  one  state  be  obliged  to 
enter,  clear  or  pay  duties  in  another."  The  freedom  from 
taxes  of  the  entire  coast  trade  and  of  the  commerce  on 
inland  waters  is  thus  firmly  established  by  the  consti- 
tution, and  it  has  been  rightly  said  that  this  provision 
alone  is  sufficient  to  show  the  immense  worth  of  the 
Union.' 

§  39.  jSTatukalization.  Immediately  after  the  provision 
as  to  the  regulation  of  trade  and  commerce,  the  right  is 
granted  to  congress  "to  establish  a  uniform  rule  of 
naturalization.-'    To  this  is  added  the  power  already  men- 

1  The  states  are  not  only  not  authorized  directly  to  prohibit  immi- 
gration, but  they  cannot  even  indirectly  hinder  it  by  laws  about  the 
landing  of  passengers  from  foreign  ports.  Cliy  Lung  vs.  Freeman, 
92  U.  S.  (Otto,  II.),  272. 

-  A  law  of  May  2,  1882,  "suspended  "  the  immigi-ation  of  Chinese 
for  ten  years. 

3  In  this  connection  it  should  also  be  said  that  in  the  clause  akeady 
discussed  as  to  exports,  the  states  are  also  forbidden  to  tax  imports. 


THE    FEDERAL   CONSTITUTION.  149 

tioned,  to  enact  a  uniform  bankruptcy  law,  and  further 
provisions  relating  to  trade  and  commerce  follow.  It 
seems  from  this  juxtaposition  that  the  authors  of  the 
constitution  regarded  naturalization  especially  from  the 
standpoint  of  the  industrial  interests,  and  that  therefore, 
in  the  adoption  of  this  provision,  they  had  in  mind  mainly 
the  encouragement  of  immigration.  In  this  sense,  too, 
congress  has  made  use  of  this  power.  The  debt  of  the 
United  States  to  this  for  their  unexampled  development 
is  well  known.  If  the  efforts  of  the  diiferent  nativist 
parties  and  especially  of  the  "  Know  Nothings "  in  the 
fifties  to  substantially  increase  the  time  of  probation, 
fixed  at  five  years  (they  wished  to  make  it  twenty-one), 
had  been  successful,  the  stream  of  immigration  would 
unquestionably  have  been  very  considerably  reduced.' 
F'rom  a  legal  point  of  view,  it  need  be  observed  only 
that  the  power  of  congress  is  exclusive,^  but  is  of  course 
restricted  to  the  grant  of  the  right  of  citizenship  of  the 
United  States.* 
Among  the  other  powers  of  congress  over  commercial 

'  A  person  must  have  resided  five  years  in  the  United  States  and 
at  least  one  year  in  the  state  or  territory  where  he  wishes  to  be 
naturahzed.  Two  years  prior  to  naturaUzation,  the  immigrant  must 
declare  under  oath  in  court  his  wish  to  become  a  citizen.  This  is  not 
necessary  if  he  came  to  the  United  States  at  least  three  years  before 
attaining  his  majority.  The  widow  and  the  minor  children  of  an 
immigrant  who  had  declared  his  intention  to  be  naturalized  in  the 
manner  required,  need  only  take  the  prescribed  oath  to  obtain  the 
right  of  citizenship.  Children  of  immigrants  obtain  citizenship 
without  naturalization,  if  they  reside  in  the  United  States  and  at 
the  time  of  their  parents'  naturalization  are  still  in  their  minority. 
Titles  of  nobility  must  be  expressly  renounced  at  the  time  of  natural- 
ization. 

'^Chirac  vs.  Chirac,  Wheaton,  II.,  259,  269. 

3  The  peculiar  consequences  of  the  right  of  the  states  to  grant  state 
citizenship  have  already  been  discussed. 


15(»  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

intercourse  are  those  in  regard  to  money,  already  stated 
in  another  connection. 

>$  40.  ]\Ieasl'kes  and  Weights.  So  far  as  the  right  "to 
fix  the  standard  of  weights  and  measures"  is  concerned, 
it  need  but  be  noted  that  it  is  not  an  exclusive  one. 
Congress  mav  make  a  uniform  svstem  of  weiohts  and 

O  .  I/O 

measures  obligatory,  but  it  has  contented  itself  witli  legal- 
izing the  metric  system,  by  an  act  of  July  28,  186G,  and 
with  fixing  the  relations  of  the  customary  weights  and 
measures  (mile,  foot,  inch;  acre,  yard,  inch;  gallon,  quart, 
gill;  pound,  ounce,  grain). 

§  41.  The  Mails.  Of  the  power  given  congress  "  to 
establish  postoffices  and  post-roads,"  Pomeroy  (p.  264) 
rightly  says  that  the  words  express  the  intention  in  the 
most  insutficient  manner.  "  To  create  and  regulate  the 
entire  postal  system  of  the  country  is  the  evident  intent." 
Accordinorly  cono-ress  has  alwavs  done  so  without  anv 
opposition.  But  this  clause  has  given  rise  to  a  more  sig- 
nificant controvei'sy.  namely,  whether  congress  can  simply 
convert  existing  roads  into  "  post-roads  "  or  whether  it 
itself  may  build  post-roads.  It  has  done  the  latter,  but 
very  seldom.^ 

1  The  act  of  Ai^ril  30,  1802,  for  the  admission  of  the  state  of  Oliio, 
involves  a  claim  of  tlie  riglit  to  build  such  roads,  but  with  an  impor- 
tant limitation,  AVhether  congi-ess  thought  this  limitation  was  re- 
quired by  expediency  in  tlie  particular  case,  or  generally  as  a  matter 
of  constitutional  law,  dues  not  appear.  Tlie  act  provides  that  the 
twentieth  jwrtion  of  the  net  proceeds  from  the  sale  of  public  lands 
within  the  state  should  be  applied  to  the  building  of  roads  "leading 
from  the  navigable  waters  emptying  into  the  Atlantic,  to  the  Ohio,  to 
the  said  state,  and  through  the  same,  such  roads  to  be  laid  out  under 
the  authority  of  congress,  icith  the  consent  of  the  several  states  through 
which  tlie  road  shall  jmss."  Stat,  at  Large,  II.,  175.  The  building  of 
the  Cumberland  road,  which  was  authorized  by  act  of  March  29,  1806 
{Jbkl.,  357),  and  its  maintenance  gave  occasion  to  repeated  and  very 
incisive  discussions  of  the  question  as  to  how  far  the  power  of  the 


THE   FEDERAL   CONSTITUTION.  151 

§  42.  Protection  of  Intellectual  Property.  The 
power  to  do  this  quite  naturally  follows  the  powers  as 
to  conjmerce,  because  this  has  to  do  to  a  certain  extent 
with  commercial  intercourse.  Congress  may  "  promote 
the  progress  of  science  and  useful  arts  by  securing  for 

United  States  to  build  roads  extended.  President  Monroe,  in  a  mes- 
sage of  May  4,  1833  (StatesmarC s  Manual,  I.,  493-537),  defended  the 
view  "  not  only  that  the  power  necessary  for  internal  improvements 
has  not  been  granted,  but  that  it  has  been  clearly  prohibited ;  "  but  he 
adds :  "  To  the  appropriation  of  the  pubUc  money  to  improvements  hav- 
ing these  objects  [to  facilitate  the  operations  of  war  and  the  transpor- 
tation of  the  mail]  in  view,  and  carried  to  a  certain  extent,  I  do  not 
see  aay  well-founded  constitutional  objection."  Jackson  adopted 
Monroe's  views  in  substance;  but,  in  the  application  of  the  principles 
laid  down  by  Monroe,  Jackson  took  his  position  more  decisively  with 
the  state's-rights  party,  and  emphasized  more  sharply  "the  general 
principle  that  the  works  which  might  be  thus  aided  should  be  of  a 
general,  not  local,  national,  not  state,  character."  See  his  Maysville 
Road  Veto  of  May  27,  1830;  Statesman's  Man.,  L,  719-728.  Subse- 
quently, the  interest  in  the  question,  as  one  of  constitutional  law, 
became  much  less.  The  power  of  the  United  States  to  construct 
roads  is  deduced,  however,  not  only  from  this  clause  about  post-roads, 
but  also  from  the  duty  of  taking  care  of  the  country's  defenses,  and 
from  the  right  to  regulate  commerce.  The  railroads,  the  building  of 
which  was  aided  in  any  way  whatever  by  the  United  States,  are  under 
an  unconditional  legal  obligation  to  carry  the  mails  at  prices  fixed  by 
congress.  All  railroads  which  carry  the  mail  must  do  so,  if  required,  on 
every  train,  and  can  make  no  extra  charge  for  the  transportation  on 
such  train  of  mail  matter,  or  of  the  persons  in  charge  of  it.  If  the  post- 
master-general can  make  no  bargain,  such  as  the  law  allows,  with  a 
railroad  to  carry  the  mails,  he  is  authorized  to  send  the  letters  by  mes- 
sengers on  horseback,  and  the  rest  of  the  mail  by  wagon.  Contracts  for 
mail  carrying  are  let,  after  public  advertisement,  to  the  lowest  bidder, 
if  he  gives  a  sufficient  bond.  Yet  a  letting  of  this  sort  is  obligatory 
only  where  the  mail  is  not  carried  by  rail  or  steamer.  It  is  only  letters 
which  must  be  sent  by  mail.  Packages  are  usually  forwarded  by 
express  companies,  and  latterly  the  larger  newspapers  have  availed 
themselves  in  great  measure  of  these  means,  because  this  costs  less 
than  sending  the  papers  by  mail.  The  act  of  June  8, 1872,  introduced 
the  money-order  system  for  sending  nioney  by  mail. 


152  CONSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

limited  times  to  authors  and  inventors  the  exclusive  right 
to  their  respective  writings  and  discoveries."  The  author- 
ity of  congress  to  promote  art  and  science  is  thus  a  very 
limited  one,  but  as  far  as  the  power  extends  it  is  exclusive 
and  plenary,  i.  e.,  it  extends  also  to  the  enactment  of 
special  laws.  The  exclusive  right  acquired  under  na- 
tional law  does  not,  however,  in  itself,  embrace  an  unlim- 
ited right  to  use  and  sell  an  invention.^  For,  in  this  re- 
spect, the  possessor  of  a  patent  is  subject  to  state  laws, 
which  may  impose  conditions  upon  the  use  of  the  article 
and  may,  under  some  circumstances,  even  forbid  its  use  as 
dangerous  to  the  community.  Copyrights  and  patents 
under  the  existing  law  are  granted  citizens  and  inhab- 
itants of  the  United  States  for  seventeen  years.  They 
may  be  extended  on  a  proper  petition  for  fourteen  years 
more.  The  Avidow  and  children  of  a  deceased  author  or 
inventor  can  also  obtain  this  extension.  The  words 
"authors  and  inventors'-  and  "writings  and  discover- 
ies "  have  received  an  extraordinarily  broad  interpreta- 
tion in  legislation.  All  kinds  of  printed  matter,  mechan- 
ical rei)roductions  of  works  of  art  of  every  sort,  ])hoto- 
graphs,  etc.,  may  be  legally  protected.  According  to 
recent  decisions  of  the  supreme  court  {United  States  vs. 
Steffens  and  United  States  vs.  Wittemajin,  1879)  congress 
cannot,  under  this  clause,  enact  laws  as  to  trade-marks. 
The  riirht  to  do  so  mav,  however,  be  deduced  from  the 
provision  as  to  the  regulation  of  commerce,  but  the  trade- 
marks would  then  be  protected  only  in  inter-state  com- 
merce. In  the  separate  states,  however,  trade-marks  are 
protected  by  the  common  law.  Foreign  countries  are 
not  considered  at  all  in  the  legislation  on  copyrights  and 

1  The  common  law  grants  an  author  protection  only  against  the 
unauthorized  publication  of  his  manuscript,  but  not  an  exclusive 
right  of  property  in  his  published  work. 


THE   FEDERAL   CONSTITUTION.  153 

patents.^  The  agitation  for  international  agreement  on 
these  subjects  has  been  vigorously  carried  on  of  late,  but 
as  yet  without  result. 

JUSTICR 

§43.  General  Powers.  After  the  observations  already 
made  as  to  the  organization  of  the  judicial  system,  the 
right  of  constituting  inferior  tribunals  (art.  I.,  sec.  8,  §  9) 
needs  no  further  commentary. 

The  next  paragraph  in  this  section  grants  congress  a 
legislative  authority  as  to  piracies  and  felonies  committed 
on  the  high  seas  and  offenses  against  the  law  of  nations. 
To  give  a  more  distinct  idea,  we  must  treat  these  provis- 
ions in  connection  with  those  found  in  other  parts  of  the 
constitution  which  also  relate  to  the  administration  of 
justice. 

It  belongs  to  congress  to  fix  the  penalties  for  piracies 
and  for  felonies  committed  on  the  high  seas  and  to  define 
what  shall  be  considered  as  crimes  falling  under  either  of 
these  two  heads.  As  piracy  is  covered  by  international 
law,  congress  is  not  bound  to  define  it ;  but  whatever  is 
made  piracy  by  international  law  is  subject  to  the  penalty 
for  piracy  fixed  by  congress.^  It  is,  of  course,  also  au- 
thorized to  declare  certain  crimes  to  be  piracies,  and  to 
punish  them  as  such,  which  by  international  law  are  not 
piracies.^  Various  views  have  been  held  as  to  the  correct 
interpretation  of  the  expression  "  high  seas  "  in  this  clause. 
It  is,  however,  established  that  the  authority  of  congress 
to  enact  penal  laws  is  not  restricted  to  crimes  committed 
on  the  high  seas,  but  that  it  is  co-extensive  with  the  crim- 
inal-law jurisdiction  of  the  admiralty  and  maritime  courts, 

1  Broion  vs.  Duchesne,  Howard,  XIX.,  183. 

2  U.  S.  vs.  Smith,  Wheaton,  V.,  153. 

3  The  Antelope,  Wheaton,  X.,  66. 


154  CONSTITUTIONAL   LAW   OF   THE   UNITED   STATES. 

a  jurisdiction  which,  according  to  art.  III.,  sec.  2,  §  1,  is 
within  the  scope  of  the  federal  sovereignty.  The  federal 
supreme  court  has,  moreover,  decided  that  the  large  in- 
land lakes  and  the  navigable  rivers  also  fall  within  the 
jurisdic-tion  of  the  admiralty  and  maritime  courts.' 

The  act  of  June  30,  1864  {Rev.  Stat,  §  5413),  defines 
what  is  meant  by  the  '*  securities  and  current  coin  of  the 
United  States."  the  counterfeiting  of  which  congress  may 
punish  by  law. 

§  44.  Treason.  Finally,  the  crime  of  treason  against 
the  United  States  falls  within  the  criminal  jurisdiction  of 
congress.  Art.  III.,  sec.  3,  sets  forth :  '^  Treason  against 
the  United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  ffivino:  them  aid 
and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court.  The  congress 
shall  have  power  to  declare  the  punishment  of  treason; 
but  no  attainder  of  treason  shall  work  corruption  of  blood 
or  forfeiture,  except  during  the  life  of  the  person  at- 
tainted." Determining  what  shall  be  treason  lies  entirely 
without  the  sphere  of  congress,  for  this  the  constitution  has 
itself  done  with  painful  care.  Congress  has  solelv  the 
power  of  fixing  the  penalty  for  the  crime.  The  interpre- 
tation of  this  highly  significant  provision  of  the  consti- 
tution is  to  be  sought,  not  among  the  laws  of  congress, 
but  amid  the  decisions  of  the  courts.^  These  decisions  lay 
down  two  important  principles:  first,  the  crime  of  ''  con- 

1  The  Hine,  Wallace,  IV.,  555.  See  S.  R.  Betts,  AdmiraUy  Practice, 
N.  Y.,  1838;  E.  C.  Benedict,  Am.  Admiralty,  2d  ed.,  N.  Y.,  1870;  R. 
Desty,  Admiralty  and  Shijijiing,  San  Francisco.  1879;  T.  M.  Etting, 
Admiralty  Jurisdiction  of  the  United  States,  Phila..  1879. 

-  An  act  of  April  30,  1790,  contains,  indeed,  a  definition  of  treason, 
but  the  substance  of  it  is  a  verbal  transcript  of  the  constitutional  pro- 
vision.   Compare  Revised  Statutes,  sec.  5331. 


THE    FEDERAL   CONSTITUTION.  155 

structive  treason,"  which  in  England  has  caused  more 
than  one  noble  head  to  fall  below  the  axe,  does  not  exist 
in  the  United  States ;  ^  second,  only  a  citizen  of  the 
United  States  can  commit  treason,  for  the  crime  presup- 
poses allegiance.^  Apart  from  these  principles,  the  de- 
cisions, gauged  by  both  moral  and  political  standards, 
present  many  striking  features.  War  is  "  levied "  as 
well  by  inciting  war  as  by  carrying  on  war.  But  a  con- 
spiracy to  overthrow  or  coerce  the  government,  as  well 
as  the  enlistment  of  men  for  such  a  purpose,  is  not,  how- 
ever, treason.  Treason  is  committed  only  when  persons 
assemble  for  the  purpose  of  carrying  out  a  treasonable 
plan.  In  such  a  case,  all  are  guilty  of  treason  who  have 
taken  part  in  the  meeting,  even  in  the  slightest  degree, 
and  if  ever  so  far  removed  from  the  place  of  action,  pro- 
vided they  are  connected  with  the  general  conspiracy.' 
The  act  alone  does  not  of  itself  constitute  treason; 
there  must  also  be  a  treasonable  intent.  The  intent 
need  not,  howev^er,  be  the  overthrow  of  the  government. 
Even  the  attempt  to  prevent  the  execution  of  a  single 
law,  or  to  compel  its  repeal,  is  treason,  if  force  is  used 
and  the  resistance  is  of  a  public  and  general  character. 
The  amount  of  force  used  is  a  matter  of  indifference. 
These  observations  explain  the  provision  —  at  first  sight  a 
curious  one  —  of  the  act  of  July  17,  1862,  that  treason 
is  punishable  either  by  death  or  by  imprisonment  in 
the  penitentiary  for  not  less  than  five  years  and  a  fine 

1  See  my  Constihitional  History,  V.,  292,  293. 

2  U.  S.  vs.  Wiltberger,  Wheaton,  V.,  79.  The  act  of  AprU  30,  1790, 
already  quoted,  is  in  unison  with  this.  On  the  other  hand,  quite  a 
modified  doctrine  is  stated  in  U.  S.  vs.  Greathouse,  2  Abbott's  U.  S. 
Rep.,  380.     See  Hurd,  Theory  of  Our  National  Existence,  61. 

^Ex  parte  Bollman,  Cranch,  IV.,  75, 


156  CONSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

of  at  least  810,000.^  From  the  power  of  congress  to  fix 
the  punishment  for  treason,  its  power  also  to  fix  punish- 
ments for  crimes  of  lesser  degree  but  of  like  character, 
such  as  insurrection,  conspiracy,  etc.,  is  inferred.-  The 
expression  "'  attainder  of  treason  "  must  be  understood  as 
referring  only  to  a  judicial  sentence.  "  Bills  of  attain- 
der," that  is,  legislative  sentences,  which  at  one  time 
played  such  an  important  part  in  English  liistor}'-,  are 
unconstitutional. 

The  authority  of  congress  is  limited  to  cases  of  treason 
against  the  United  States.  The  clause  providing  for  the 
extradition  of  fugitive  criminals  (art.  lY.,  sec.  2,  §  2) 
shows  that  the  constitution  recognizes  the  possibility  of 
treason  against  a  single  state.  This  is  an  important  mat- 
ter, for  the  usual  assumption  is  that  treason  can  be  com- 
mitted only  against  a  sovereign  power.  If  the  separate 
states  are,  however,  really  ''sovereign,"  and  if  treason 
can  be  committed  against  them,  there  may  then  be  a 
dangerous  and  unfair  conflict  of  duties  for  the  individual 

iThe  act  of  April  30,  1790,  provided  that  every  traitor  sliould 
"  suffer  death."  Stat,  at  Large,  I.,  112.  The  same  act  further  de- 
clared that  whoever  had  knowledge  of  a  treasonable  crime,  and  did 
not  as  soon  as  possible  give  information  of  it,  should  "be  adjudged 
guilty  of  misprision  of  treason  and  be  i^unished  by  imprisonment  of 
not  more  than  seven  years  and  by  a  fine  of  not  more  than  .$1,000." 

-  Tlie  civil  war  gave  extensive  occasion  for  the  use  of  this  implied 
power.  On  July  31,  1861,  an  "  act  to  define  and  punish  certain  con- 
spiracies," and  on  August  6,  1861,  an  act  in  regard  to  the  enlistment 
of  soldiers  and  sailors  "to  engage  in  armed  hostility  against  the 
United  States,"  became  laws.  The  penalties  provided  by  these  laws 
are  extraordinarily  mild.  Then  followed  the  law  already  mentioned, 
the  act  of  July  17,  1862,  "  to  suppress  insurrection,  to  punisli  treason 
and  rebellion,  to  seize  and  confiscate  the  property  of  rebels,  and  for 
other  purposes,"  and  finally,  on  Februarj'  25,  1863,  an  "act  to  pre- 
vent correspondence  with  rebels."  Stat,  at  Large,  XII.,  284,  317, 
589,  696. 


THE   FEDERAL   CONSTITUTIOlf.  157 

citizen.  This  was  pointed  out  when  the  constitution  was 
being  drafted  and  when  its  adoption  was  being  discussed.' 
This  appeared  on  a  broad  stage  during  the  civil  war. 
Many  southerners,  like  General  Kobert  E.  Lee  and  Alex- 
ander H.  Stephens,  the  vice-president  of  the  Confederate 
States,  were  opposed  to  secession,  but,  after  secession  was 
once  ordained  by  their  respective  states,  they  declared  them- 
selves not  only  willing  to  go  with  their  states,  but  bound 
to  go  with  them  unless  they  were  to  be  guilty  of  treason, 
for  they  owed  allegiance  to  their  respective  states  and 
indeed  only  to  them.  The  federal  government  naturally 
refused  to  admit  this,  and  Chief-justice  Chase  decided, 
in  Shortridge  vs.  Macon,  that  no  "  rebel "  could  defend  him- 
self from  the  charge  of  treason  by  pleading  the  ordinances 
and  commands  of  his  state.  Logically,  however,  this 
question,  on  account  of  its  connection  with  other  prob- 
lems of  constitutional  law  brought  to  the  surface  by  the 
civil  war,  leads  to  a  whirlpool  of  conflicting  conclusions. 
But  a  further  discussion  of  the  question  (upon  which 
Hurd  throws  a  penetrating  light  in  the  book  already 
cited)  must  not  be  attempted  here.  This  remarkable 
fact,  however,  should  be  stated,  that  the  doctrines  of 
constitutional  law  in  relation  to  treason  were  not  clearly 
stated  and  sharply  defined  by  reason  of  the  civil  war,  but 
were  rather  obscured  thereby. 

§  45.  Other  Criminal  Law  Powers.  Further  express 
authorizations  to  enact  criminal  laws  are  not  to  be  found 
in  the  constitution.  It  is,  however,  self-evident,  and  it 
has  never  been  seriously  denied,  that  congress  may  not 
only  punish  all  violations  of  the  federal  laws,  but  may 
also  impose  penalties  upon  acts  which,  if  committed  with 
impunity,  would  render  impossible  the  effective  exercise 

1  See  Elliot,  I.,  883,  383;  V.,  488. 


158  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

of  its  constitutional  powers.^  This  right  is  based  upon 
the  provision  authorizing  congress  "to  make  all  laws 
which  shall  be  necessary  and  proper "  to  carry  out  the 
powers  belonging  to  it  or  to  any  other  factor  of  the  gov- 
ernment (art.  I.,  sec.  8,  §  18).  That  the  constitution  did 
not  intend  to  charge  the  respective  states  with  the  duty 
of  enforcing  the  observance  of  the  federal  laws  b}^  means 
of  their  own  penal  laws  is  so  certain  that,  according  to 
the  decision  of  the  federal  supreme  court  in  Martin  vs. 
Hunter  (Wheaton,  I.,  304),  not  even  a  part  of  the  crimi- 
nal-law powers  of  the  United  States  can  be  conferred 
upon  the  state  courts.- 

§  46.  Impeachment.  Impeachment  is  a  judicial  pro- 
ceeding, and  its  discussion  therefore  belongs  to  this  chap- 
ter on  the  powers  of  congress  in  regard  to  the  adminis- 
tration of  justice.  It  has  undoubtedly  nothing  in  common 
Avith  the  powers  hitherto  discussed,  and  is  absolutely  sid 
generis.  Congress,  as  such,  is  not  in  question.  It  is  not 
a  legislative  but  a  judicial  power  which  comes  into  play. 
In  this  proceeding  the  two  houses  have  entirely  different 
functions:  the  house  of  representatives  acts  as  accuser, 
and  the  senate  as  judge.^  It  is  evident,  therefore,  that 
the  constitutional  provisions  concerned  cannot  be  inter- 
preted by  judicial  decisions,  because  any  controverted 
questions  under  them  do  not  come  before  ordinary  courts. 

^  The  latter  principle  was  established  by  the  decision  of  the  supreme 
court  in  TJ.  S.  vs.  Marigold,  Howard,  IX.,  560. 

2  See  T.  F.  Waterman,  U.  S.  Digest  of  Criminal  Cases,  N.  Y.,  1877; 
J.  P.  Bishop,  Criminal  Law,  6th  ed.,  2  vols.,  Boston,  1877;  Ibid., 
Criminal  Procedure,  3d  ed.,  2  vols.,  Boston,  1880;  F.  Wharton,  Crim- 
inal Pleading  and  Practice,  8th  ed.,  Phila.,  1880;  Ibid.,  American 
Criminal  Laic,  8th  ed.,  4  vols.,  Phila.,  1881;  R.  Desty,  American 
Criminal  Law,  San  Francisco,  1883. 

3  Art.  I.,  sec.  2,  §  5,  and  art.  I.,  sec.  3,  §  6.  Both  clauses  use  the 
phrase,  "  the  sole  power." 


THE   FEDEEAL   CONSTITUTION.  159 

Impeachment  is  a  political  process.  The  decision  as  to 
what  the  law  is  is  made  by  the  powers  which  act  in  this 
process  as  accuser  and  judge,  inasmuch  as  they  carry  out 
the  constitutional  provisions  in  accordance  with  the  in- 
terpretation which  seems  to  them  just.  There  is  no  appeal 
from  their  decision. 

The  constitution  presupposes  that  it  is  well  known 
what  an  impeachment  is.  And  as  it  is  a  technical  ex- 
pression, this  implies  that  the  proceeding  known  in 
English  law  by  this  name  is  meant.  But  it  is  by  no 
means  to  be  said  that  the  English  idea  must  be  accepted 
without  any  modification.  Whether  it  has  been  changed, 
and  if  so  how,  must  be  deduced  from  the  further  pro- 
visions of  the  constitution  on  this  point,  as  interpreted  by 
both  houses  of  congress,  when  engaged  in  their  respective 
functions  in  conducting  impeachments. 

Art.  II.,  sec.  4,  reads:  "The  president,  vice-president, 
and  all  civil  officers  of  the  United  States  shall  be  re- 
moved from  ofiice  on  impeachment  for  and  conviction 
of  treason,  bribery,  or  other  high  crimes  or  misdemean- 
ors." The  wording  of  this  paragraph  raises  a  most  sig- 
nificant question.  Farrar  (p.  436)  thinks  that  emphasis 
must  be  laid  upon  the  effect  which  conviction  is  to  have 
upon  the  designated  persons  impeached  for  the  causes 
assigned,  and  thus  he  comes  to  the  conclusion  that  any 
other  person  may  also  be  impeached.  But  since  there  is 
nowhere  else  in  the  constitution  anything  said  as  to  who 
shall  be  subject  to  impeachment  or  in  what  cases  it  shall 
come  to  pass,  while  another  paragraph  contains  more 
definite  provisions  as  to  the  consequences  of  conviction, — 
in  view  of  this  it  has  always  been  the  opinion  of  the  most 
prominent  jurists  and  statesmen  as  well  as  of  the  entire 
public,  that  the  clause  cited  must  be  held  to  settle  these 
two  questions,  and,  of  course,  that  only  the  persons  named 


160        coxsTiTrrioxAL  law  of  the  united  states. 

are  subject  to  impeachment  and  they  only  for  the  causes 
mentioned.  This  must  be  held  to  be  the  valid  constitu- 
tional law.  as  long  as  the  house  of  representatives  does 
not  impeach,  and  the  senate  does  not  hold  itself  compe- 
tent to  try,  under  impeachment,  a  person  who  is  not  a 
"civil  officer''  of  the  United  States.  The  two  houses  did 
not  at  first  agree  as  to  the  limit  of  the  power.  Senator 
Blount  was  impeached  by  the  house  in  1798,  but  the  sen- 
ate, by  a  majority  vote,  declared  itself  incompetent  to 
hear  the  case.  It  is  self-evident  that  neither  the  house  of 
representatives  nor  the  senate  is  bound  by  this  decision. 
But  it  will  scarcely  be  questioned  that  members  of  con- 
gress are  not  "civil  officers"  of  the  United  States,  within 
the  meaning  of  this  constitutional  provision.  It  has 
never  been  disputed  that  judges  come  under  this  designa- 
tion. It  has  l)een  asserted,  however,  that  impeachment 
is  admissible  only  as  long  as  the  person  concerned  remains 
in  office.  One  effect  of  this  would  be  that  every  official 
threatened  with  impeachment  could  escape  it  by  resigna- 
tion. The  house  of  representatives  decided  against  this 
doctrine,  in  1ST6,  by  the  impeachment  of  Secretary  of 
"War  Belknap. 

There  have  been  more  vigorous  discussions  over  the 
j)roper  interpretation  of  the  constitutional  provisions  in 
regard  to  the  grounds  of  impeachment.  It  is  agreed  that 
the  incriminating  acts  must  have  some  relation  to  the 
official  action  of  the  person  concerned,  since  impeach- 
ment aims  at  the  preservation  of  public  interests.  But 
the  two  houses  have  by  no  means  assented  to  the  view, 
so  energetically  defended,  that  only  official  acts  present 
a  constitutional  ground  for  an  impeachment.  Just  as 
little  have  they  ever  held  that  the  words  "  high  crimes 
and  misdemeanors  "  are  to  be  understood  in  their  technical 
sense,  and  that  an  impeachment  can  be  based  only  upon 


THE   FEDERAL   CONSTITUTION.  161 

acts  which  the  federal  laws  have  ex])ressly  declared  to  be 
"felonies"  or  ''misdemeanors;"  that  is,  "indictable  of- 
fenses." Some  authorities  —  and  they  agree  in  this  with 
congress — are,  nevertheless,  of  the  opinion,  that  the  words 
are  not  to  be  understood  in  the  misty  and  vague  sense 
they  have  in  ordinary  speech,  but  are  to  be  interpreted 
by  the  rules  of  the  common  law.  This  opinion  will  never 
go  unquestioned,  because  the  very  existence  of  a  general 
^  common  law  "  of  the  United  States  is  strenuously  de- 
nied.^ Practically  the  matter  takes  this  form,  that  the 
individual  views  of  the  then  members  of  congress  must 
always  determine  what  they  will  regard  as  high  crimes 
and  misdemeanors  within  the  meaning  of  the  constitu- 
tion. Neither  the  arguments  of  authorities  on  jurispru- 
dence nor  precedents  can  bind  them  any  further  than 
they  wish  to  be  bound. 

As  to  the  effect  of  impeachment,  art.  I.,  sec.  3,  §  7, 
says :  "  Judgment  in  cases  of  impeachment  shall  not  ex- 
tend further  than  to  i*emoval  from  office  and  disqual- 
ification to  hold  and  enjoy  any  office  of  honor,  trust 
or  profit  under  the  United  States;  but  the  party  convicted 
shall,  nevertheless,  be  liable  and  subject  to  indictment, 
trial,  judgment  and  punishment  according  to  law."  It  is 
evident  from  the  second  clause  that  the  purpose  of  im- 
peachment is  not  the  punishment  of  the  guilty  person, 

•  Apart  from  this,  the  common  law,  as  is  well  known,  plays  nearly 
as  large  a  part  in  American  as  in  English  legal  life.  An  American 
common  law  may  therefore  be  spoken  of  even  by  one  who,  like  my- 
self, holds  the  opinion  stated  in  the  text,  provided  that  the  expression 
is  understood  to  mean  the  common  law  in  the  United  States  and  not 
the  common  law  of  the  United  States.  On  the  common  law  in  the 
United  States,  see  J.  D.  Wheeler,  American  Common  Laio,  8  vols., 
N.  Y.,  1833-1836;  W.  A.  Cocke,  Common  and  Civil  Laic  in  the  U.  S. 
Courts,  N.  Y.,  1871;  O.  W.  Holmes,  Jr.,  The  Common  Law,  Boston, 
1881. 

11 


162  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

but  the  protection  of  public  interests  from  danger  or  in- 
jury bv  abuse  of  official  power,  neglect  of  duty  or  con- 
duct incompatible  with  the  dignity  of  the  office.  The 
])unishment  of  all  crimes  and  punislial)le  misdemeanors 
according  to  law  remains  entirely  with  the  ordinary 
courts,  m  the  regular  course  of  judicial  proceedings.  As 
to  the  consequences  of  a  conviction  in  an  impeachment 
trial,  the  wording  of  the  constitution  admits  of  a  two- 
fold interpretation.  In  theoretical  circles  it  is  usual  to 
assume  that,  according  to  the  constitution,  conviction  in- 
capacitates the  culprit  for  filling  any  federal  office.  This 
view  is,  however,  not  only  not  shared  by  the  most  pro- 
found jurists,  but  the  senate  has  already  in  one  case  (that 
of  John  Pickering,  1804)  passed  sentence  of  only  a  re- 
moval from  the  office  then  held.  The  theory  which  has 
also  been  advanced,  that  a  less  penalty  than  removal  from 
office  may  be  imposed  (Farrar,  pp.  434,  435),  will  probably 
never  be  approved  b}^  the  senate.  It  is  founded,  indeed, 
only  upon  far  too  subtle  verbal  criticism,  and  it  conflicts 
with  the  ver}^  substance  and  purpose  of  impeachment. 
In  cases  of  impeachment  the  president  has  no  right  of 
pardon  (art.  II.,  sec.  2,  §  1). 

As  to  the  method  of  procedure,  the  constitution  con- 
tains three  provisions.  The  "senators  shall  be  on  oath  or 
affirmation  when  the  senate  meets  as  a  court  of  impeach- 
ment; if  the  president  is  impeached,  the  chief  justice  of 
the  supreme  court  shall  preside;  and  for  conviction  a 
two-thirds  majority  of  all  the  members  present  shall  be 
necessary  (art.  I.,  sec.  3,  §  6).  Everything  else  as  to  ])ro- 
cedure  is  left  to  congress.^  But  it  is  self-evident  that  con- 
gress is  bound  by  all  the  provisions  of  the  constitution  in 
point.     Tiffany's  view  (p.  354)  is  therefore  to  be  rejected 

1  See  the  detailed  description  in  Story,  §  807  et  seq. 


THE   FEDERAL   CONSTITUTION.  lt>3 

without  question.  He  holds  that  congress  may  arrest  an 
impeached  president  and  suspend  him  from  office  during 
the  proceedings.  But  this  would  place  the  president,  who 
is  a  co-ordinate,  and  within  his  constitutional  sphere  an 
independent,  factor  of  the  federal  government,  completely 
in  the  hands  of  a  hostile  majority  of  both  houses  of  con- 
gress.' Pomeroy  (p.  494)  may  be  cited  against  Tiffany. 
He  holds  that,  in  the  case  of  an  official  whoje  term  of 
office  is  not  fixed  by  the  constitution,^  the  question  is 
to  be  decided  upon  grounds  of  equity  and  expediency,  be- 
cause there  are  no  insuperable  constitutional  objections 
to  suspension  in  such  a  case. 

INTERNATIONAL  RELATIONS  AND   MILITARY  SOVER- 
EIGNTY. 

§  47.  International  Relations.  The  powers  of  con- 
gress in  regard  to  international  relations  are  few  in  num- 
ber. The  first  provision  on  this  point  which  authorizes 
congress  "to  define  and  punish  .  .  .  offenses  against  the 
law  of  nations  "  (art.  L,  sec.  8,  §  10),  considered  from  a  cer- 
tain point  of  view,  should  be  discussed  in  the  paragraphs 
concerning  justice.  The  right  in  this  case  is  clearly  also 
a  duty,  and  the  duty  has  been  met  and  discharged  by  the 
passage  of  so-called  neutrality  laws,  which  have  often 
played  an  important  part  in  the  inner  history  of  the 
United  States.' 

The  other  powers  of  congress  in  this  respect  all  relate 
to  the  condition  of  war,  and  must  be  discussed  in  con- 

1  The  disposition  prevailing  against  Andrew  Johnson  in  1868  leaves 
little  room  for  doubt  that  congress  would  have  proceeded  against 
him  in  tliis  way  if  it  had  considered  itself  able  to  do  so. 

2  Judges  are  thus  excluded. 

3  The  other  laws  enacted  by  virtue  of  this  provision  need  no  special 
mention. 


164  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

nection  with  the  question  of  military  sovereignty.  More- 
over, foreign  relations  are  placed  in  charge  of  the  presi- 
dent, with  the  co-operation  of  the  senate.  They  will 
therefore  be  treated  in  the  chapter  on  the  powers  of  the 
executive.  Here  it  is  necessary  simply  to  lay  stress  on 
the  fact  that  foreign  relations  are  the  exclusive  domain 
of  the  federal  government.  The  constitution  does  not 
content  itself  with  sharing  among  the  different  factors 
of  the  national  government  all  the  powers  concerned. 
It  expressly  withholds  them  from  the  states.  The  latter 
are  absolutely  forbidden  to  enter  into  any  treaty,  alliance 
or  confederation  (art.  I.,  sec.  10,  §  1).  They  can  make 
agreements  or  compacts  of  any  kind  whatever  with  a 
foreign  power  only  with  the  consent  of  congress.^ 

§  48.  Military  Sovereignty.  In  a  military  aspect  the 
consolidation  or  nationalization  of  the  Union  has  not  been 
carried  as  far  as  in  reference  to  the  regulation  of  peaceful 
relations  with  foreign  powers.  Experience  has  shown, 
however,  that  the  constitutional  provisions  on  this  point 
render  the  highest  development  of  national  strength  pos- 
sible. 

The  right  "  to  declare  war  "  belongs  to  congress  alone 
(art.  I.,  sec.  8,  §  11).  Of  course,  the  United  States  may 
get  into  a  war  without  congress's  having  declared  Avar. 
"War  is,  in  the  first  place,  a  state  of  fact,  the  appearance 
of  which  cannot  be  made  wholly  dependent,  by  any  con- 
stitutional provisions  whatever,  upon  the  pleasure  of  one 
of  the  nations  concerned.  As  far  as  that  is  possible, 
however,  congress  has  the  exclusive  right  of  the  initiative. 

'  The  other  constitutional  provisions  on  this  point  will  be  mentioned 
later  in  another  connection.  The  "agreements  and  compacts"  are 
distinguished  from  "  treaties  and  alliances  "  in  this:  that  the  latter 
have  a  more  permanent  character,  while  the  former  have  only  a 
momentary  purpose  and  are  ended  when  it  is  accomplished.  Holmes 
vs.  Jennison,  Peters,  XIV.,  540,  572. 


THE    FEDERAL   CONSTITUTION.  165 

If  a  foreign  power  begins  war  against  the  United  States, 
then  it  is  not  only  the  right,  but  the  duty,  of  the  presi- 
dent to  oppose  the  enemy  with  all  the  means  placed  at 
his  disposal  by  the  constitution  and  the  laws.  But  he  is 
not  to  regard  every  act  of  hostility  as  the  opening  of  an 
aggressive  war  and  thereupon  begin  on  his  own  part  act- 
ual war.  It  is  for  congress  to  decide  whether  he  has  ex- 
ceeded his  constitutional  authority  in  this  respect,  or  has 
actually  found  himself  face  to  face  with  an  accomplished 
fact  by  the  initiative  of  a  foreign  state.'  That  the  latter 
may  be  the  state  of  the  case  is  expressly  acknowledged  by 
the  constitution's  providing  that  without  the  consent  of 
congress  "  no  state  shall  .  .  .  engage  in  war,  unless  act- 
ually invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay  "  (art  I.,  sec.  10,  §  3).  The  states  can  no 
more  begin  war  than  can  the  president;  they  can  take 
into  account  the  presence  of  actual  facts  only  as  far  as 
the  inalienable  right  and  imperious  necessity  of  self- 
defense  demand  it.  If  a  state  gets  into  serious  trouble  of 
this  sort  when  congress  is  not  in  session,  the  president  is 
in  duty  bound  to  call  forth  the  entire  federal  power,  if 
necessary,  for  its  protection ;  for  the  United  States  must 
"  protect "  every  state  "  from  invasion  "  (art.  lY.,  sec.  4).^ 
It  appears,  therefore,  that  the  right  to  declare  war  may 
become  a  duty,  and  further,  that  this  right  implies  the 
powers  needed  for  the  effective  conduct  of  a  war.^    If  the 

1  The  importance  of  this  question  appears  from  the  ante-bellum 
history  of  the  Mexican  war,  which  was  quite  certainly  brought  about 
by  the  president  in  an  unconstitutional  way.  See  my  Constitutional 
History,  III.,  chs.  6-9. 

2  The  two  clauses  last  mentioned  apply  in  case  of  threats  or  acts  of 
violence,  not  only  by  foreign  enemies,  but  also  by  sister  states. 

*The  question  as  to  whether  a  "  war  "  against  rebellious  states  was 
admissible  or  even  possible,  constitutionally,  has  been  discussed  with 
much  acuteness  and  much  learning.    Many  stout  volumes  have  been 


100  CONSTITUTIONAL    LAW    OK    THE    UNITED    STATES. 

most  essential  of  these  powers  were  expressly  granted  to 
congress,  this  was  done,  not  only  to  save  all  doubt,  but 
Ijecause  they  must  be  vested  in  congress  in  time  of  peace 
as  well,  partly  for  the  sake  of  preparing  for  war  and 
partly  for  other  reasons. 

The  right  to  grant  letters  of  marque  and  reprisal,  con- 
ferred upon  congress  in  the  same  paragraph  which  treats 
of  the  right  to  declare  war,  is  expressly  withheld  from  the 
states  (art.  1.,  sec.  10,  g  1).  This  is  not  the  case  as  to  the 
authority  to  enact  laws  concerning  captures  on  sea  or  land, 
as  this  right  in  its  very  nature  is  an  exclusive  one.  The 
property  of  an  enemy  can  be  legally  contiscated  only  in 
accordance  with  laws  passed  by  congress,^  but  the  power 

filled  with  demonstrations  pro  and  con.  Even  if  space  allowed, 
however,  further  discussion  of  this  controverted  question  must  be 
waived.  It  certainly  is  not  without  interest  and  it  has  a  practical, 
important  side.  Thus  the  blockade  imposed  by  Lincoln  gave  foreign 
powers  a  formal  legal  basis  for  the  recognition  of  the  Confederate 
States  as  a  war-making  power.  But  from  the  stand-point  of  constitu- 
tional law,  the  question  at  bottom  involves  only  an  idle  exercise  of  the 
wits.  If  abstract  logic  be  followed,  it  becomes  very  easy  to  constru(_'t 
an  interminable  labyrinth  of  contradictions.  Examine  it  more  closely 
and  the  labyrinth  is  onl}'  a  house  of  cards.  The  American  statesmen 
upon  whom  devolved  the  duty  of  overthrowing  the  rebellion  did  not 
from  the  outset  keep  clearly  enough  in  view  the  fact  that  it  was  not 
a  law-suit,  which  should  or  could  be  carried  on  in  accordance  with 
constitutional  provisions,  but  a  state  of  fact,  which  had  as  its  legal 
basis,  in  principle,  so  far  as  the  rebels  were  concerned,  the  annulment 
of  the  entire  constitution.  Legally  they  were  and  thej'  remain 
reV>els.  Whether  and  how  far  it  was  expedient  and  necessary,  to  give 
the  form  of  a  war,  conducted  according  to  the  laws  of  nations,  to  the 
attempt  to  .subdue  the  rebels, —  an  attempt  which  was  a  constitu- 
tional right  and  duty, —  depended  solely  on  matters  of  fact  and  lias 
nothing  to  do  with  constitutional  law.  As  far  as  the  rebels  were 
c:)ncerned,  the  whole  constitution  was  reduced  for  the  federal  gov- 
ernment to  the  single  right  and  duty  of  forcing  them  back  to  obeii- 
ence;  all  else  was  a  qiu^^tion  of  policy. 

'  1h  ow.  vs.  United  St  a  Is,  Cranch.  VIIL,  110. 


THE    FEDERAL   CONSTITUTION.  167 

of  confiscation  possessed  by  congress  is  subject  to  no  legal 
restriction  of  any  kind  whatever.  This  clause  has  be- 
come of  great  prr.ctical  significance,  because  the  right  of 
emancipating  the  slaves  in  the  rebellious  states  was 
deduced  from  it. 

The  right  to  raise  and  support  armies  and  to  provide 
and  maintain  a  navy  (art.  I.,  sec.  8,  §§  12,  13)  is  not  en- 
tirely exclusive  in  congress.  The  states  are  forbidden 
only  to  "  keep  troops  or  ships  of  war  in  time  of  peace 
.  .  .  without  the  consent  of  congress "  (art.  I.,  sec. 
10,  §  3).  But  if,  in  times  of  w^ar,  the  states  are  free  to 
act  independently  in  this  respect,  yet  this  in  no  way  lim- 
its the  power  of  congress  to  call  forth  the  force  of  the 
]>eople  under  the  immediate  and  sole  control  of  the  fed- 
eral government  in  whatever  measure  it  sees  fit.  It  alone 
is  to  decide  upon  how  strong  the  army  and  navy  should 
be  and  how^  the  men  are  to  be  got.  On  account  of  the 
smallness  of  the  regular  forces  needed  in  ordinarv  times — 
at  present  not  quite  thirty  thousand  soldiers,  seven  thou- 
sand five  hundred  sailors  (officers  excepted),  and  one 
thousand  five  hundred  marines  —  free  enlistment  supplies 
all  the  men  needed.  During  the  civil  war,  however,  con- 
gress made  use  of  conscription.^  The  constitutionality 
of  the  law  was,  it  is  true,  vigorously  contested.  The 
sound  sense  of  the  people  was,  however,  so  decisively  op- 
posed to  the  legal  subtleties,  intended  to  prove  the  law's 
unconstitutionality,  that  the  strange  doctrine  gained  no 
foothold,  despite  some  decisions  in  its  favor.  This  asser- 
tion, that  congress  was  not  authorized  to  act  solely  upon 
grounds  of  necessity  and  expediency,  was  the  more  sur- 

1  Able-bodied  immigrants  from  twenty  to  forty-five  years  of  age, 
who  had  declared  under  oath  their  intention  to  become  citizens,  were 
made  liable  to  conscription  just  as  citizens  were.  For  certain  excep- 
tions and  more  detailed  information,  see  Stat,  at  L.,  XII.,  731  et  seq. 


IGS  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

prising,  because  the  constitutional  provisions  concerned 
liave  always  been  interpreted  to  mean  that  congress  can 
do  everything  demanded  by  the  defense  of  the  country. 
Upon  these  provisions  have  been  based  the  right  to  build 
forts  and  all  other  fortilications,  the  right  to  found  and 
maintain  the  military  school  at  West  Point  and  the  naval 
school  at  Annapolis,  the  right  to  grant  rewards  and  even 
pensions  to  soldiers,  etc.^ 

Better  founded  occasions  for  constitutional  criticism 
might  be  found,  indeed,  in  the  methods  adopted  by  the 
federal  government  to  create,  before  the  conscription 
act  of  March,  1863,  the  army  needed  to  make  war  upon 
the  rebels.  The  first  seventy -five  thousand  men  were 
called  to  arms  by  Lincoln,  under  an  act  of  1795  relating 
to  the  mustering  of  the  militia.     Then,  however,  "  volun- 

1  The  military  school  at  West  Point  was  founded  May  16,  1802.  Ap- 
plicants for  admission  must  be  from  seventeen  to  t\veuty-t%\  o  years  of 
age.  The  president  appoints  the  pupils,  one  from  each  congi-essional 
district,  each  territory  and  the  District  of  Columbia,  and  ten  at  large. 
The  appointees  are  subject,  however,  to  an  examination  for  admis- 
sion and  are  dismissed  from  the  academy  if  they  do  not  pass  the  ex- 
aminations held  during  the  course  of  studies.  These  examinations 
are  controlled  by  a  board  of  visitors  consisting  of  thirteen  members. 
The  president  appoints  seven,  the  vice-president  appoints  three  sen- 
ators, and  the  speaker  of  the  house  of  representatives  appoints  three 
members  of  the  house.  The  cadets,  who  must  bind  themselves  to 
serve  for  eight  years,  are  supported  wholly  at  the  expense  of  the 
United  States.  They  receive  rations  and.  pay.  At  the  head  of  the 
military  academy'  there  is  a  "superintendent."  The  immediate  con- 
trol of  the  "battalion  of  cadets"  is  vested  in  a  "commandant  of 
cadets."  These  two  military  principals  as  well  ;is  the  professors  are 
appointed  by  the  president.  The  corps  of  teachers  is  completed  by 
army  officers  detailed  by  the  secretary  of  war.  The  organization  of 
the  naval  school  is  substantially  the  same  as  that  of  the  military 
academy.  The  pupils  are  appointed,  one  from  each  congressional 
district,  upon  the  recommendation  of  the  representative  from  that 
district.     The  age  for  admission  is  from  fourteen  to  eighteen  yeai-s. 


THE    FEDERAL   CONSTITUTION.  169 

teers"  were  asked  for;  that  is,  required.  This  was  done, 
manifestly,  upon  the  ground  of  the  power  "  to  raise 
armies,"  and  the  "  volunteers "  were  designated  and 
treated  as  a  constituent  part  of  the  United  States  array. 
On  some  essential  points,  however,  they  were  treated  as 
militia.  Eegiments  were  organized  according  to  states; 
the  entire  number  of  men  called  for  was  divided  into 
quotas  for  the  several  states ;  and  the  inferior  officers  were 
appointed  by  the  respective  governors.  It  would,  indeed, 
be  difficult  to  prove  that  this  was  actually  unconstitu- 
tional, but,  at  all  events,  the  federal  army  and  the  militia 
were  not  kept  so  distinctly  separate  as  they  should  have 
been,  or  at  least  might  have  been,  according  to  the  true 
intent  of  the  constitution. 

§  49.  Militia.  There  is  no  militia  of  the  United  States. 
The  constitution  recognizes  only  a  militia  of  the  several 
states,  and  the  authority  of  the  federal  government  as  to 
them  is  precisely  defined.  It  is  nowhere  made  the  express 
duty  of  the  states  to  have  a  militia.  But  not  only  does 
the  constitution  take  the  existence  of  a  state  militia  for 
granted,  but  the  states  can  be  compelled  to  maintain  one 
by  federal  legislation,  for  congress  is  authorized  "  to  pro- 
vide for  organizing,  arming  and  disciplining  the  mili- 
tia." 1 

1  "Every  able-bodied  male  citizen  of  the  respective  states,  resident 
therein,  wiio  is  of  the  age  of  eigliteen  years,  and  under  the  age  of 
forty-five  years,  shall  be  enrolled  in  the  militia."  Rev.  Stat.,  sec. 
1625.  But,  as  it  further  says  that  *'  all  persons  who  now  ai-e  or  may 
hereafter  be  exempted  by  the  laws  of  the  respective  states  shall  be 
exempted  from  militia  duty,"  the  states  are  absolutely  bound  only  to 
have  some  sort  of  a  militia.  Even  if  this  is  not  the  spirit  of  the  law, 
its  letter  permits  them  to  make  the  exceptions  so  extensive  as  to  be- 
come the  rule.  Their  freedom  of  action  is  expressly  restricted  only 
in  so  far  that  they  must  regard  the  exceptions  made  by  the  federal 
law,  esx)ecially  the  exemption  of  federal  officials.  If  a  state  abuses 
the  freedom  left  it  by  the  letter  of  the  law,  it  might  not  be  able  to 


170  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

The  training  of  the  militia,  according-  to  the  rules 
laid  down  by  congress,  and  the  appointment  of  officers, 
are  strictly  reserved  to  the  states  (art.  I.,  sec.  8.  §  16). 
The  militia  can  be  called  into  the  service  of  the  Union 
only  for  three,  distinct  purposes:  "to  execute  the  laws 
of  the  Union,  suppress  insurrections  and  repel  invasions  " 
(IMc/.,  ^  15).  The  militia  cannot  be  taken  out  of  the 
country.  Moreover  it  can  be  directly  called  into  service 
to  suppress  an  insurrection  only  when  the  insurrection  is 
acrainst  the  United  States.  In  case  of  domestic  violence, 
directed  solely  against  a  state  government,  the  federal 
government  can  interpose  only  on  application  of  the  state 
legislature,  or  of  the  governor  if  the  legislature  is  not  in 

raise  an  armed  force  for  its  own  protection.  For,  when  tlie  militia 
of  several  states  is  called  iiit.>  the  service  of  the  United  States,  the 
total  number  of  men  required  must  be  distributed  among  the-;e  states 
in  proportion  to  the  number  of  their  representatives  in  congress. 

B}'  an  act  of  July  IT,  1862,  tlie  call  must  not  be  for  more  than  nine 
months.  If  the  militia  is  takea  into  the  .service  of  the  United  States, 
it  is  subject  to  the  same  rules  and  articles  of  war  as  the  regular  army, 
but  also  receives  "  tiie  same  pay,  rations,  clothing  and  camp  equi- 
page." Its  court-martials,  however,  are  made  up  only  of  militia 
officers.  A  law  of  .July  14,  18B2,  put  militia  in  the  national  service 
upon  the  same  footing  as  regular  soldiers,  so  far  as  pensiim-rights 
were  concerned.  The  first  militia  act  (May  8, 1792)  prescribed  exactly 
the  arms  and  equipments  with  which  every  officer  and  soldier  should 
be  provided.  As  early  as  1808,  congress  appropriated  $2U0,000  per 
annum  for  the  militia,  for  the  supply  of  arms,  etc., —  an  amount  which 
was  to  be  annually  divided  among  tlie  states  in  proportion  to  the 
number  of  their  representatives  in  congress.  As  a  result  of  this  ar- 
rangement the  seceded  states  vvere  able  to  begin  war  against  the 
Union  with  arms  furnished  them  by  the  government  of  the  Union. 
The  federal  laws  contain  no  absolutely  binding  directions  as  to  how 
the  militia  should  be  subdivided  into  divisions,  brigades,  regiments, 
etc.,  but  the  comjxjsition  of  the  corps  of  officers  is  carefully  pre- 
scribed. Each  state  must  have  an  adjutant-general,  and  he  must 
send  a  report  to  the  pr  'sident  at  the  beginning  of  each  year.  Army 
regulations  as  to  dLscipline  and  drill  are  to  be  taken  as  a  model. 


THE   FEDERAL   CONSTITUTION.  171 

session.  In  tliis  instance,  however,  it  is  bound  to  leml  its 
aid  [ixrt.  lY.,  sec.  4).'  The  constitution  does  not  say  in  so 
many  words  whose  duty  it  is  to  call  out  the  militia  for  any 
of  the  purposes  mentioned.  The  wording  of  the  partic- 
ular clause  — *'to  provide  for  calling  forth" — shows,  how- 
ever, that  congress  need  not  act  directly  in  every  case, 
but  may  pass  general  laws  providing  under  what  circum- 
stances and  in  what  way  a  call  shall  be  made.  This  it 
has  done,  and  has  transferred  the  power,  with  all  the  im- 
plied powders  and  duties,  to  the  president.  When  the 
militia  is  called  into  the  service  of  the  United  States,  the 
provision  applies  to  it,  which  authorizes  congress  "  to 
make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces  "  (art.  I.,  sec.  8,  §  14).  The  Avording  of 
this  paragraph,  Avhich  forms  the  basis  of  the  whole  "  mil- 
itary law,"  is  not  sufficiently  clear  to  permit  the  line  be- 
tween the  authority  of  congress  and  that  of  the  president 
as  commander-in-chief  to  be  always  drawn  with  certainty.^ 
§  50.  Quartering  Soldiers.  Traditions  of  English  his- 
tory caused  the  passage  of  the  third  amendment.  This 
provides  that  "no  soldier  shall  in  time  of  peace  be  quar- 
tered in  any  house  without  the  consent  of  the  owner,  nor 
in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law." 

1  This  provision  has  this  weighty  result,  that,  when  two  legislatures 
or  two  governors  are  opposed  to  one  another  in  the  same  state,  the 
president  must  decide  which  government  is  the  legal  one.  Whether 
there  really  is  domestic  violence  is  a  (question  of  fact,  as  to  which, 
according  to  law,  the  president  has  the  exclusive  right  of  decision. 
If  his  decision  is  held  to  bo  erroneous  by  congress,  the  latter  can  ad- 
minister wliatever  remedy  seems  fit,  but  there  can  be  no  appeal  to 
the  courts  from  the  judgment  of  the  president.  Luther  vs.  Borden, 
Howard,  VII.,  43-45;  Martin  vs.  Mott,  Wheaton,  XII.,  29-31. 

2  See  Pomeroy,  p.  297,  for  a  case  of  conflict  resulting  from  this. 


172  CO^'STITUTIONAL    LAW    OF    THE    UNITED    STATES. 


THE  SEAT  OF  GOVERNMENT  AND  THE  SEPARATE  PROP- 
ERTY OF  THE  NATION. 

§  51.  District  of  Columbia.  "When,  after  the  termi- 
nation of  the  war  of  independence,  the  wretched  effects 
of  a  Aveak  government  became  daily  more  and  more  mani- 
fest, the  evils  due  to  the  fact  that  congress  had  to  meet 
within  the  limits  of  a  state's  jurisdiction  were  especially 
felt.  Tliis  made  congress  dependent  to  a  certain  degree 
upon  the  state  government,  a  dependence  which  w^as 
always  improper,  and  under  critical  conditions  might 
have  become  fatal.  These  evils  led  the  authors  of  the 
constitution  to  think  of  a  means  of  preventing  them  for 
the  future.  And  they  concluded  that  they  had  discov- 
ered it  in  the  provision  authorizing  congress  to  acquire 
by  cession  from  any  of  the  states  a  district  of  not  more 
than  ten  miles  square  as  the  seat  of  government  over 
which  it  could  "  exercise  exclusive  legislation  in  ail  cases 
wdiatsoever  "  (art.  I.,  sec.  8,  §  17).  The  territory  called 
the  District  of  Columbia  was  acquired  from  Yirginia  and 
Maryland.  The  part  ceded  by  Yirginia  was  afterwards 
ceded  back  to  her.  The  history  of  the  slavery  question 
teaches  on  every  page  the  eminent  significance  of  the 
fact  that  the  capital  was  built  within  the  domain  of 
slavery.  Against  the  clear  wording  of  the  constitution, 
the  south  asserted  that  congress  could  not,  without  the 
consent  of  Maryland  (and  Yirginia),  abolish  slavery  in 
the  District.  Until  civil  war  had  come,  the  representa- 
tives of  the  north  acknowledged  the  "  moral  "  obligation 
of  letting  it  continue.  The  seat  of  government  was 
withdrawn  from  the  influence  of  a  state  government,  but 
instead  it  was  brought  under  the  infinitely  more  potent 
influence  of  the  slavocracy.  Apart  from  the  slavery 
question,  this  paragraph  has  given  rise  to  no  far-reaching 


THE   FEDERAL   CONSTITUTION.  173 

controversies.  The  principles  laid  down  by  the  supreme 
court,  that  the  exclusive  legislative  power  involves  exclu- 
sive jurisdiction,  and  that  congress  is  not  the  local  legis- 
lature of  the  District,  but  possesses,  as  the  national 
legislature,  exclusive  legislative  power  over  it,  have  never 
been  seriously  assailed.^  The  power  of  giving  the  city 
of  Washington  its  own  municipal  government  has  there- 
fore always  been  regarded  as  self-evident.  On  the  con- 
trary, the  constitutionality  of  organizing  the  District  into 
a  territory  like  the  ordinary  territories  has  been  disputed, 
because  a  partial  delegation  of  the  legislative  power  is 
inadmissible,  on  account  of  the  expressly  stated  exclusive- 
ness  of  this  power.  It  is,  however,  generally  admitted 
that  "  exclusive  "  does  not  mean  the  same  as  "  unlimited." 
Congress  cannot  grant  the  inhabitants  of  the  District 
any  rights  which,  according  to  the  general  political  nat- 
ure of  the  Union,  belong  only  to  the  population  of  the 
states  —  such,  for  instance,  as  representation  in  congress, 
participation  in  the  presidential  election,  etc.  And  just 
as  little  can  congress  rule  the  District  without  regard  to 
the  provisions  of  the  so-called  "  bill  of  rights."  But 
what  congress  cannot  do  in  regard  to  the  District  in 
matters  not  involving  the  rights  of  the  states  as  such, 
that  it  also  cannot  do  in  reference  to  anybody  or  any- 
thing.'^ 

1  Cohens  vs.  Virginia,  Wheaton,  VI.,  424. 

2  Congress  has  tried  all  sorts  of  experiments  as  to  the  local  govern- 
ment of  the  District,  some  of  them  with  very  unfortunate  results. 
At  present  there  are  three  commissioners  at  the  head  of  the  admin- 
istration of  the  District.  The  inhabitants  cannot  well  grieve  over  the 
loss  of  their  short-lived  enjoyment  of  a  limited  autonomy,  for  while 
their  rights  have  again  become  more  limited  (necessarily  so  under  the 
present  system)  their  interests  are  better  cared  for.  They  must  bear 
the  same  burdens  as  the  rest  of  the  people,  have  the  same  taxes  to 
pay  and  are  bound  to  ^erve  in  the  militia.    But  in  spite  of  their  full 


17-i  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

§  52.  Xatioxal  Property.  In  the  same  paragrapli 
equally  exclusive  authority  is  given  congress  "•  over  all 
])laces  purchased,  by  the  consent  of  the  legislature  of  the 
state  in  which  the  same  shall  be,  for  the  erection  of  forts, 
magazines,  arsenals,  dock-yards,  and  other  needful  build- 
ings." Real  estate  within  a  state  may  al.jo  be  acquired  by 
the  nation  without  the  consent  of  the  state  legislature,  but 
it  is  only  when  that  consent  is  given  that  this  provision 
applies.  The  inhabitants  of  such  places  are  legally  no 
longer  inhabitants  of  the  state,  that  is,  the}'  do  not  pos- 
sess the  civil  and  political  rights  which  would  belong  to 
them  as  citizens  of  the  state.  In  spite  of  this  provision, 
the  seceded  states  demanded  the  evacuation  and  surren- 
der of  the  forts  and  arsenals  as  their  right,  on  the  plea 
that  the  ''places"  had  not  ceased  to  be  a  portion  of  the 
territory  of  the  state  on  account  of  congress's  acquiring 
exclusive  legislative  power  and  jurisdiction  over  them, 
and  that  consequently  the}'  must  ipso  facto  revert  to  the 
states  if  the  latter  by  virtue  of  their  sovereignty  cut  loose 
from  the  Union.  If  the  premises,  that  is,  state  sovereignty 
and  the  resulting  right  of  secession,  are  admitted,  then 
the  correctness  of  the  conclusion  must  be  granted,  and 
the  Union  would  have  had  only  a  right  of  reasonable  in- 
demnification.    But  what  leiral  claims  could  the  seceded 


citizenship  jjolitical  rights  are  withheld  from  them  solely  because  they 
have  their  domicile  at  the  seat  of  government.  This  is  an  anomaly 
that  has  never  been  justified  theoretically,  and  its  necessity  —  not  to 
say  its  expediency —  has  become  at  least  doubtful  since  the  power  of 
the  federal  government  has  become  so  firmly  estal)!ished  and  so  far 
beyond  the  power  of  each  separate  state.  This  anomaly,  moreover, 
will  always  remain  a  thorn  in  the  flesh  of  the  American  disciples  of 
the  doctrine  of  natural  political  rights.  The  creation  of  the  District 
of  Columbia  is  one  of  those  steps  which  it  is  scarcely  possible  to  re- 
trace, even  if  tlie  circumstances,  which  at  one  timj  made  them  seem 
wise,  have  given  room  to  a  completely  changed  state  of  things. 


iliE    FEUEEAL   CONSTITUTION.  175 

states,  upon  these  premises,  make  in  regard  to  that  fed- 
eral property, —  the  territories, —  which  had  most  directly 
led  to  the  development  of  the  clash  of  interests  between 
the  north  and  south  into  an  "irrepressible  conflict"  which 
had  to  lead  to  a  rupture?  The  abstract  logic  of  this 
method  of  interpreting  constitutional  law  would  have 
obhged  the  south  to  demand  the  partition  of  the  territo- 
rial domain  among  the  several  states.  This  would  have 
been  the  final  practical  result  of  the  doctrine,  and  it  puts 
its  absurdity  in  the  most  glaring  light. 

§  53.  The  Teeritories.  The  slavery  question,  which 
every  year  became  more  and  more  the  central  point  of 
the  whole  inner  history  of  the  United  States,  culminated 
in  the  struggle  over  the  territories;  that  is,  in  the  ques- 
tion what  rights  the  slave-holder  had,  or  ought  to  have,  in 
them.  While  the  southern  states  had  originally  preferred 
to  rely  upon  a  claim  of  equity,  and  had  triumphantly 
celebrated  the  fact  that  their  "  peculiar  institution  "  could 
be  unconditionally  and  forever  excluded  only  from  the 
territorial  domain  north  of  36°  30',  the  rapid  develop- 
ment of  the  north  forced  them  to  constantly  increase  their 
claims,  until  they  finally  laid  down  the  principle  that  slav- 
ery could  not  be  prohibited  in  a  territory  either  by  congress 
or  by  the  people  of  the  territory  through  its  legislature, 
but  that,  independent  of  the  constitution,  the  slave-holder 
could  go  with  his  slaves  into  any  territory,  and  must  be  pro- 
tected in  his  ownership  until  the  territory  became  a  sov- 
ereign state  and  thus  acquired  the  right  to  determine  for 
itself  whether  or  no  slavery  should  exist  within  it.  The 
so-called  Douglas  democrats  also  denied  the  power  of 
congress  to  legislate  as  to  slavery  in  the  territoi'ies,  but 
declared  that  the  population  of  each  territory  was  author- 
ized to  permit  or  prohibit  slavery.  The  republicans,  on 
the  contrary,  advocated  fully  and  completely  the  doc- 


176  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES, 

trine,  at  first  generally  acknowledgecl,  of  the  exclusive 
and  unlimited  legislative  authority  of  congress  over  the 
territories.  The  assertions  of  the  radical  southerners 
and  of  the  Donglas  democrats  found  not  the  slightest 
positive  support  in  the  constitution.  Neither  of  these 
two  parties  asked  what  the  law  was  according  to  the  con- 
stitution, but  constructed  by  general  reasoning  from  pre- 
tended "  principles  "  outside  of  the  constitution  the  "  right " 
which  they  claimed  existed.  This  was  made  possible  be- 
cause the  only  express  constitutional  provision  that  could 
be  invoked  as  bearing  on  this  question  certainly  gave  no 
sufficiently  solid  and  broad  foundation  for  the  correct 
doctrine.  The  latter,  therefore,  had  to  be  to  a  great  ex- 
tent based  upon  deductions  from  other  clauses  of  the 
constitution,  or  wholly  upon  general  principles.  The  con- 
stitution says  nothing  whatever  about "  territories."  And, 
moreover,  the  word  "territory  "  is  used  but  once,  and  that 
in  the  following  provision:  "The  congress  shall  have 
power  to  dispose  of,  and  make  all  needful  rules  and  regu- 
lations respecting,  the  territory  or  other  property  belong- 
ing to  the  United  States  "  (art.  lY.,  sec.  3,  §  2).  "  Terri- 
tory "  is  thus  named  in  connection  with  "  other  property." 
It  was  argued  from  this  that  the  word  was  used  only  in 
reference  to  land  as  a  salable  object,  and  that  the  "  rules 
and  regulations"  related  only  to  the  methods  of  turning 
it  into  cash. 

Even  statesmen  and  jurists  who  were  by  no  means 
"  strict  constructionists  "  have  recognized  that  it  is  at  least 
very  doubtful  whether  there  could  be  deduced  from  this 
paragraph  a  general  legislative  power  of  congress  over  the 
territories,  limited  only  by  the  constitution.  They  based  the 
right  upon  the  power  of  acquiring  territory.  This  power 
itself  was  originally  doubted;  but  the  opinion  of  the  su- 
preme court  that  it  is  implied  in  the  grant  of  power  to  de- 


THE   FEDERAL   CONSTITCTION,  177 

clare  war  and  make  treaties  received  general  assent.  If, 
however,  the  right  of  legislation  can  be  inferred  only  from 
the  right  of  acquisition,  does  it  not  exist,  then,  only  as  to 
the  domain  acquired  by  war  or  treaty  under  the  constitu- 
tion? But  one  of  the  first  laws  of  congress  related  to  the 
territorial  domain  acquired  before  the  existence  of  the 
constitution.  This  law  provided  that  the  "  ordinance  of 
1787  "  as  to  the  territory  northwest  of  the  Ohio  I'iver, 
which  became  inoperative  upon  the  adoption  of  the  con- 
stitution, should  remain  in  force.*  The  constitutionality 
of  this  law  was  questioned  by  no  one,  although  it  was 
admitted  that  the  congress  of  the  confederation  had  no 
authority  to  enact  the  ordinance,  and  that  its  usurpation 
could  be  pardoned  onW  on  the  ground  of  an  imperious 
political  necessity.  Moreover,  as  it  had  cost  a  long  and 
difficult  struggle  to  persuade  the  states  to  transfer  to  the 
Union  the  unsettled  "  backwoods  "  districts  they  claimed 
under  their  colonial  patents,  the  great  importance  of  the 
(juestion  must  have  been  very  plain  to  the  authors  of  the 
constitution.  These  facts  lead  to  one  of  two  conclusions, 
either  that  the  right  of  legislation  seemed  to  the  authors 
of  the  constitution  a  self-evident  consequence  of  ownership, 
or  else  that  the  provision  cited  does  not  refer  simply  to 
the  value  of  "  territory  "  as  part  of  the  national  wealth.^ 
The  preference  must  be  given  to  the  latter  assumption. 
For,  in  the  first  place,  the  right  of  sale  is  a  direct  legal 

1  It  has,  however,  been  disputed  whether  or  no  the  adoption  of  the 
constitution  affected  the  validity  of  the  ordinance.  Cooley,  Prin- 
ciples, 169. 

•* Georgia  and  North  Carolina  ceded  their  "backwoods"  country 
<  nly  after  the  adoption  of  the  constitution.  It  is  to  them  that  the  final 
ilause  of  the  paragraph  quoted  refers :  ' '  And  nothing  in  tliis  constitu- 
tion  shall  be  so  construed  as  to  prejudice  any  claims  of  the  United 
States  or  of  any  particular  state." 
12 


178  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

consequence  of  the  fact  of  ownership,  and  if  an  express 
declaration  of  the  smaller  power  were  deemed  necessary, 
the  express  declaration  of  the  greater  could  not  be 
regarded  as  superfluous.  It  would  have  been  quite  pos- 
sible, however  inexpedient,  to  transfer  to  the  president 
the  administration  of  the  territorial  domain  regarded  sim- 
ply as  property,  if  the  regulation  of  territorial  relations 
by  law  was  to  be  renounced.  But  the  general  right  of 
legislation  for  this  most  important  part  of  the  national 
domain  could  belong  only  to  the  national  legislature, 
if  it  existed  at  all.  That  it  must  exist  w^as  never  dis- 
puted by  the  most  extreme  advocates  of  states' -rights. 
It  was  constantly  exercised,  with  their  co-operation,  in 
the  most  comprehensive  manner,  although  they  utterly 
denied  its  existence  in  regard  to  slavery  as  a  question  sui 
generis. 

In  spite  of  the  greatest  differences  of  opinion  upon  the 
constitutional  basis  of  the  powers  in  question,  legislation 
as  to  the  territories  has  thus  always  had,  by  common 
consent,  two  entirely  different  sides.  On  the  one  side 
the  laws  refer  to  the  territorial  domain  as  cujer  puhlicus, 
and  on  the  other  to  the  territories  as  such,  ^'.  e.,  as  political 
structures  entirely  peculiar  to  the  United  States,  pointedly 
called  embryo  states, —  states  in  clirysalis  form.  As  to 
the  former,  we  need  only  emphasize  here  that  thoughts  of 
immediate  monetary  returns  were  thrust  more  and  more 
into  the  background  as  the  country  developed  and 
greater  stress  was  laid  upon  the  encouragement  of  settle- 
ment. Sales  at  low  prices  of  course  constantly  continued, 
but  the  free  grants  increased  extraordinarily.  Among 
the  more  important  of  the  latter  were  rewards  to  men 
who  had  shed  their  blood  for  the  country,  gifts  for  school 
purposes  and  for  the  promotion  of  railroad  building,  and 


THE   FEDERAL   CONSTITUTION.  179 

above  all  things  grants  of  homesteads,  conditioned  upon 
cultivation  of  the  land  a  certain  number  of  years.^  If 
congress  had  limited  itself  to  selling  the  land  cheap  and 
to  giving  it  away,  the  process  of  settlement,  however, 
would  have  gone  on  very  slowly.     In  order  to  mduce  a 

i  The  general  land  office  was  created  April  25,  1812,  to  administer 
the  national  treasure  of  the  public  lands.  Its  head  is  a  commissioner 
appointed  by  the  president  with  the  consent  of  the  senate.  It  was 
originally  part  of  the  treasury  department,  but  was  afterwards  at- 
tached to  the  department  of  the  interior.  How  great  the  business 
extent  of  this  bureau  is  may  be  inferred  from  the  fact  that  it  is  the 
head  centre  of  more  than  a  hundred  land  offices.  But  it  has  already 
touched  its  high-water  mark.  In  the  near  future  there  will  be  no 
ager  piiblicus  anj'where  in  the  United  States. 

The  survey  of  the  public  lands  is  made  in  accordance  with  a  most 
comprehensive  geometric  plan.  General  meridian  lines  are  first  es- 
tablished. Then,  between  them,  and  at  distances  of  six  miles  apart, 
parallel  lines  are  dra%vn  north  and  south,  and  east  and  west.  The 
squares  thus  formed  are  called  townships  and  are  numbered  contin- 
uously in  both  directions  (from  north  to  south  Arabic  and  from  east 
to  west  Roman  numerals).  Each  township  is  divided  in  the  same 
way  into  thirty-six  sections,  each  one  mile  square,  and  every  section 
into  sixteen  quarters  of  quarter-sections  of  forty  acres  each. 

Acquisition  by  Purchase.  The  more  the  knowledge  grew  how 
much  the  settlement  of  the  "  backwoods"  was  in  the  interest  of  the 
whole  people,  the  more  reasonable  and  moderate  were  made  the 
prices  of  the  public  lands.  The  more  also  was  attention  directed  to 
facilitating  the  settler's  getting  an  indefeasible  title  to  the  land  he  had 
begun  to  cultivate.  With  this  aim  in  view,  very  appropriate  provisions 
were  devised  as  to  the  right  of  pre-emption.  An  act  of  September 
4,  1841,  made  subject  to  pre-emption  all  public  lands  with  the  ex- 
ception of  (1)  the  reservations  made  by  treaty,  law  or  proclamation 
of  the  president ;  (2)  land  within  the  limits  of  already  incorporated 
or  prospective  cities  and  towns ;  (3)  land  already  in  use  for  purposes  of 
trade  or  business ;  (4)  lands  on  whicli  salt-pits  or  mines  were  known 
to  exist.  Citizens  of  the  United  States  of  full  age,  and  immigrants 
who  have  legally  declared  their  intention  of  becoming  citizens,  can 
acquire  the  right  of  pre-emption  at  the  lowest  legal  price,  by  begin- 
ning to  cultivate  the  land  they  wish,  provided  that  tliey  do  not 
already  own  in  any  state  or  territory  three  hundred  and  twenty  acres, 


ISO  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

larger  number  of  people  of  culture  to  pull  down  their 
domestic  altars  and  bear  them  into  the  wilderness,  before 
all  things  they  had  to  be  assured  that  the  principles  of 
social  and  political  order  had  already  found  a  place 
there,  and  that  the  tribunal  of  law  had  been  erected.     In 

and  have  not  given  up  their  property  in  that  state  or  territory  in  order 
to  take  possession  of  pubhc  land.  The  president  determines  what 
pubhc  lands  not  claimed  under  pre-emption  are  to  be  offered  at  pub- 
lic sale.  The  necessary  proclamations  must  be  published  from  three 
to  six  months  before  the  sale.  As  a  rule  the  lands  are  offered  for 
fourteen  days,  and  the  upset  price  is  $1.25  per  acre.  Land  offered 
at  public  sale  and  not  sold  may  afterwards  be  sold  privately.  The 
alternate  sections  reserved  in  making  land  grants  to  railroads  are 
doubled  in  price.  There  ai-e  special  provisions  as  to  mineral  lands. 
Originally  only  the  right  of  mining,  and  not  the  land  itself,  could  be 
acquired.  An  act  of  May  10,  1872,  permits  the  purchase,  but  re- 
stricts the  right  to  citizens  and  to  those  immigrants  who  have  made 
the  often-mentioned  declaration  of  intent  to  become  citizens.  This 
act  authorizes  the  miners  of  each  mining  district  to  make  rules  ' '  gov- 
erning the  location,  manner  of  recording,  amount  of  work  necessary 
to  hold  possession  of  a  mining  claim,"  etc.,  under  the  self-evident  re- 
striction that  these  i-ules  shall  not  conflict  with  the  laws  of  the 
United  States  or  of  the  state  or  territory  in  which  the  district  is  lo- 
cated. To  receive  a  "  patent "  for  a  piece  of  mineral  land,  proof  must 
be  furnished  that  at  least  $500  has  been  expended  in  preparatory  work 
upon  the  particular  piece  of  gi-ound.  This  provision  assumes,  what 
is  true  in  fact,  that  the  search  for  minerals  in  the  public  lands  is  en- 
tirely free.  If  within  sixty  days  no  counter-claim  is  made,  the  claim 
will  be  granted  upon  the  payment  of  $5  per  acre.  A  patent  for  a 
mining  claim  is  issued  only  if  the  vein  or  lode  has  been  found  on  the 
piece  of  giound  to  be  patented.  The  claim  cannot  extend  over  one 
thousand  five  hundred  feet  along  the  vein  or  lode,  and  not  more  than 
three  hundred  nor  less  than  twenty-five  feet  on  either  side  of  its  cen- 
tre line,  to  be  measured  on  the  surface.  For  placer-claims,  that  is, 
when  the  mineral  to  be  excavated  is  not  imbedded  in  rocks,  a  patent 
depends  upon  analogous  provisions ;  but  according  to  a  law  of  July 
9,  1870,  no  person  or  association  can  obtain  a  placer-claim  of  more 
than  a  hundred  and  sixty  acres.  An  individual  can  buy  one  hundred 
and  sixty  acres  of  coal  lands  and  an  association  three  hundred  and 
twenty  acres,  at  a  minimum  price  of  $10  per  acre  if  the  land  is  more 


THE    FEDERAL   CONSTITUTION.  181 

the  nature  of  things,  this  could  liappen  in  this  instance 
only  by  virtue  of  federal  law.  And  so  the  right  or  duty 
of  congress  to  "  make  all  needful  rules  and  regulations  " 
to  make  the  territories  worth  as  much  as  possible  in 
money  to  the  Union  implied  as  its  direct  and  necessary 

than  fifteen  miles  from  a  completed  railroad,  and  at  a  minimum  price 
of  $20  per  acre  if  it  is  within  this  limit.  If  an  association  of  not  less 
than  four  persons  has  already  spent  $5,000  in  opening  a  colliery,  it 
has  a  right  to  buy  six  hundred  and  forty  acres  (act  of  March  3,  1873). 
Acquisition  by  Gift.  "  Mineral  land  "  is  excepted  from  all  grants 
(resolution  of  January  80,  1865,  and  act  of  June  21,  1866).  The  land- 
grants  made  at  various  times  to  soldiers  were  assignable,  and  there- 
fore, to  a  large  extent,  they  were  profitable  only  to  speculators. 
The  famous  homestead  law  of  May  20,  1862,  absolutely  forbids 
any  assignment  as  long  as  the  homestead  has  not  become  the  sole 
property  of  the  settler.  Under  this  law  citizens  of  the  United 
States  of  full  age  (including  women),  and  immigrants  who  have 
declared  their  intention  to  become  citizens  in  the  legal  manner, 
can  enter  as  homesteads  either  one  hundred  and  sixty  acres  of  public 
lands  held  at  $1.25  an  acre,  or  eighty  acres  of  such  land  held  at  $2.50 
per  acre,  upon  paying  a  fee  of  $10  or  $5  respectively.  An  affidavit 
must  be  made  and  filed  setting  forth  that  the  entry  is  made  for  the 
purpose  of  actual  settlement  and  cultivation,  and  neither  directly  nor 
indirectly  for  the  benefit  of  any  other  person.  When  the  settler  has 
lived  five  years  upon  his  land  and  cultivated  it,  it  becomes  his  free 
property ;  but  all  right  to  it  will  be  forfeited  if  he  removes  to  an- 
other place  or  actually  abandons  the  land  entered  for  more  than  six 
months.  For  the  benefit  of  minor  children,  both  of  whose  parents 
die  before  perfecting  the  homestead  title,  the  homestead  may  be  sold 
within  two  years  after  the  death  of  the  surviving  parent.  Creditors 
cannot  levy  on  a  homestead  if  their  claims  are  older  than  the  patent. 
Pursuant  to  this  law  there  were  entered  in  the  general  land  ofiice 
from  July  1,  1869,  to  June  30,  1884,  about  seventy-one  million  acres. 
Under  the  act  hereafter  mentioned,  to  encourage  the  planting  of 
trees,  twenty  million  acres  more  were  entered. 

Town  and  City  Sites.  By  act  of  March  3,  1863,  the  president  is 
authorized  to  reserve  town  sites  at  harbors,  at  the  junction  of 
rivers,  important  portages,  or  any  natural  or  prospective  centre  of 
population.  These  reservations  are  divided  into  building  lots  and 
offered  at  public  sale  at  prices  fixed  by  disinterested  persons.     If  not 


1S2  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

result  the  general  power  of  congress  to  legislate.  x\ccord- 
ingly,  congress  has,  as  has  been  said,  always  and  in  fact, 
from  the  very  beginning,  made  smooth  the  way  for  the 
pushing  stream  of  settlers  to  the  far  west  by  organizing 
laro-e  sections  of  the  territorial  domain  by  law  into  terri- 
tories  bearing  distinct  names  and  possessing  political  sys- 

sold  at  public  auction  they  may  be  sold  privately,  but  not  for  less 
than  the  estimated  price.  Private  persons  who  have  laid  out  a  town 
upon  the  public  lands  or  propose  to  lay  one  out  must,  pursuant  to  an 
act  of  July  1,  1864,  record  and  submit  an  exact  survej',  covering  at 
most  six  hundred  and  forty  acres.  The  lots,  which  must  not  exceed 
four  thousand  two  hundred  square  feet,  are  then  offered  at  public 
auction  at  a  minimum  price  of  $10  each.  At  the  subsequent  private 
sales  the  secretary-  of  the  interior  may  raise  or  lower  the  price,  as  the 
development  of  the  place  seems  to  demand  ;  but  any  change  in  the 
minimum  price  must  be  made  known  at  least  three  months  in  ad- 
vance. During  these  three  months  an  actual  settler  on  a  lot  can  buy 
that  and  also  anj-  other  one  lot  which  he  has  substantially  improved 
at  the  former  minimum  price.  Pursuant  to  the  act  of  March  2,  1867, 
the  city  authorities  of  an  incorporated  city  (and  in  case  of  non-incor- 
poration, then  the  judge  of  the  county  court)  may  enter  in  trust,  for 
the  benefit  of  the  occupants  of  town  lots,  the  whole  area  at  the  min- 
imum price.  The  trust  is  then  executed  according  to  state  or  terri- 
torial legislation.  The  same  lasv  permits  the  area  of  the  town  to  be 
enlarged  as  the  population  increases,  and  fixes  two  thousand  five 
hundred  and  sixty  acres  as  the  maximum  for  five  thousand  inhab- 
itants. 

Certain  parts  of  the  public  domain,  distinguished  for  natural 
beauty  or  natural  wonders,  such  as  the  Yellowstone  Park,  are  re- 
served by  law  from  sale,  gift  or  other  alienation. 

W.  W.  Lester,  Land  Laics,  Regulations  and  Decisions  of  the  U.  S., 
2  vols.,  Phila.,  1860-70;  H.  N.  Copp,  Public  Land  Laws,  Washington, 
1875 ;  J.  B.  Lewis,  Leading  Cases  on  Public  Land  Laics,  Wash.,  1879 ; 
D.  H.  Talbot,  Land  Laics  of  the  U.  S.,  Sioux  City,  1879;  G.  A. 
Blanchard  and  E.  P.  Weeks,  Leading  Cases  on  Mines,  Minerals  and 
Mining  Water  Rights,  San  Francisco,  1877;  W.  A.  Skidmore,  Mining 
Statutes  of  the  U.  S.  and  Decisions,  San  Francisco,  1878;  M.  B.  Car- 
penter, Mining  Code  of  the  U.  S.  and  Colorado,  3d  ed.,  Denver,  1880; 
H.  X.  ("op]),  U.  S.  Mineral  Lands,  Washington,  1881 ;  D.  S.  Sickles, 
U.  S.  Mining  Laics  and  Decisions,  San  Francisco,  1881. 


THE   FEDERAL   CONSTITUTION.  183 

tems  of  their  own  under  the  control  of  the  federal 
government.  They  are  not  limbs,  but  constituent  parts 
of  the  Union.  Therefore  the  doctrine  that  the  constitution 
becomes  valid  as  to  the  territories  only  by  legislation — 
although  Webster  defended  it  —  is  utterly  inadmissible. 
The  constitution  is  not  only  the  fundamental  law  of  the 
united  states,  but  it  is  the  constitution  of  the  United 
States;  and  this  name  comprehends  within  itself  the 
whole  domain  of  the  Union.  If  the  territories  were  not 
subject  to  the  constitution,  congress  could  pass  no  laws 
about  them,  for  it  possesses  no  power  outside  of  the  con- 
stitution. Webster's  principle  is  true  only  in  this:  that 
a  large  part  of  the  constitution  does  not  apply  to  the 
territories.  They  have  no  rights  of  their  own  under  the 
constitution,  and  cannot  be  granted  any  such  by  congress. 
The  inhabitants  of  the  territories,  who  are  citizens  of  the 
United  States  by  birth  or  naturalization,  have  all  the 
rights  guarantied  or  granted  by  the  constitution  or 
the  laws  to  citizens  of  the  United  States  as  such.  But 
they  have  not  and  cannot  have  the  rights  which  belong 
to  citizens  of  the  states  by  virtue  of  the  constitutional 
rights  of  the  states.  They  can  no  more  have  representa- 
tion in  congress  or  a  share  in  presidential  elections  than 
the  District  of  Columbia  can.  In  order  to  present  their 
wishes,  grievances  and  views  directly  to  congress,  the 
right  has  been  given  them  by  law  to  elect  a  "  delegate  " 
from  each  territory  to  the  house  of  representatives. 
Delegates,  like  representatives,  can  discuss  every  ques- 
tion, but  even  if  a  territory  were  ten  times  as  populous 
as  one  or  another  state,  the  right  to  vote  in  congress 
could  be  given  its  delegate  only  by  a  constitutional 
amendment.  And  such  an  amendment  would  overthrow 
a  fundamental  principle  of  the  constitution. 

On  the  other  hand,  congress  can  at  any  moment  abol- 


ISi  COXSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

isli  the  institution  of  territorial  delegates  and  can  subject 
the  general  organization  of  the  territories  to  any  change 
it  sees  fit.  The  form  of  organization  has  in  fact  varied. 
Different  plans  have  been  tried,  not  only  as  to  minor  de- 
tails, but  in  matters  of  such  an  essential  character  that  it 
is  not  incorrect  to  s])eak  of  territories  of  different  grades. 
In  the  simplest  form,  the  governor  and  the  judges—  both 
appointed  by  the  president  with  the  consent  of  the  senate 
for  territories  of  every  grade  —  constitute  the  law-making 
bodv,  while  in  territories  of  the  highest  grade  the  legis- 
lature  is  elected  by  the  people  and  consists  of  two  houses. 
Some  of  the  territoi'ies  have  had  both  forms  of  govern- 
ment, besides  undergoing  a  transition  from  one  to  the 
other.  Now,  there  are  only  territories  of  the  highest 
grade.  Yet  there  is  a  substantial  difference  among  them, 
because  some  of  them  have  to  submit  their  laws  to  the 
approval  of  congress,  while  in  the  case  of  others  ^  this  is 
not  demanded.  But  even  if  congress  has  freely  used  its 
power  of  organizing  the  territories  in  each  given  case  ac- 
cording to  the  peculiar  controlling  circumstances  of  the 
case,  yet  the  same  thought  lies  at  the  basis  of  every  dif- 
ferent form  of  organization.  And  this  is  made  necessary 
by  the  tenor  of  the  part  of  the  constitution  which  precedes 
that  which  treats  of  the  territories.  It  must  be  read  and 
interpreted  in  connection  with  the  latter.  It  relates  to 
the  admission  of  new  states.- 

1  Dakota,  Idaho,  Montana  and  Wyoming. 

2Tlie  territorial  organizations  have  become,  as  stated  in  the  text, 
more  and  more  alike.  The  following  provisions  hold  good  for  all  of 
the  territories :  The  executive  power  is  in  the  hands  of  a  governor, 
who  is  appointed  by  the  president  with  the  consent  of  the  senate  for 
a  term  of  four  years.  In  the  same  way  and  for  the  same  time  ai'e 
api)ointed  the  secretary,  the  judges  of  the  supreme  court,  the  district 
attorney  and  the  marshal.  Tlie  term  of  office  may  also  be  ended  by 
removal,  before  the  expiration  of  the  four  years.     The  governor  is 


THE    FEDERAL   CONSTITUTION.  185 

§54.  TuE  Admission  of  New  States.  "New  states 
may  be  admitted  by  the  congress  into  this  Union,"  It  is 
evident  that  the  authors  of  the  constitution,  in  adopting 
this  provision,  had  in  mind,  in  the  first  place,  states  which 
Avere  to  develop  in  and  out  of  the  then  territorial  domain 
of  the  Union,  because  the  constitution  goes  on  to  say : 
"  But  no  new  state  shall  be  formed  or  erected  within  the 
jurisdiction  of  any  other  state,  nor  any  state  be  formed 

commandor-in-chief  of  the  militia.  He  possesses  the  right  of  pardon 
in  cases  of  violation  of  territorial  laws,  and  in  cases  of  violation  of 
federal  laws  he  has  the  right  of  postponing  the  execution  of  the  judg- 
ment until  the  president's  decision  can  be  got.  He  apj^oints  certain 
officials.  He  has  the  same  qualified  "veto "-power  over  territo- 
rial enactments  as  the  president  has  over  congressional  legislation. 
Other  important  powers  of  the  governor  need  not  be  cited  here,  be- 
cause they  simply  call  into  life  the  organs  of  self-government  and 
themselves  expire  with  the  meeting  of  the  first  legislature.  The  sec- 
retary discharges  the  functions  of  the  governor,  in  case  of  the  latter's 
absence,  resignation  or  removal,  until  the  governor  can  again  attend 
to  his  office  or  another  governor  is  appointed.  The  secretary  keeps 
the  legislative  as  well  as  the  executive  records.  He  sends  the  laws 
to  congress  and  to  the  president,  and  to  the  latter,  besides,  the  jour- 
nals of  the  legislature,  the  pardons  and  the  official  correspondence 
of  the  governor.  The  legislative  power  —  in  striking  contrast  with 
the  corresponding  provisions  of  the  federal  constitution,  although  the 
governor  has  in  this  respect  only  the  same  powers  as  the  president  — 
is  vested  in  the  governor  and  a  legislative  assembly.  The  latter  con- 
sists of  a  council  and  a  house  of  representatives.  Members  of  both 
houses  are  elected  for  two  years.  The  legislature  meets  each  second 
year.  Tiie  sessions  cannot  lal^t  more  than  forty  days,  and  the  print- 
ing expenses  of  a  session  cannot  exceed  $4,000.  A  candidate  for  the 
legislatuie  must  reside  in  the  particular  district  and  must  have  the 
franchise.  The  conditions  of  the  right  of  suffrage  are  fixed  by 
the  legislature ;  but  it  can  be  granted  only  to  citizens  of  full  age  and 
to  such  iumiigi-ants  as  have  legally  declared  their  intention  to  become 
citizens.  As  the  constitution  and  all  federal  laws,  so  far  they  are  not 
"  locally  inapplicable,"  are  valid  in  the  territories,  the  political  equal- 
ity of  the  colored  people  is  protected  in  the  ten-itories  as  far  as  it  is 
in  the  states  under  the  constitution  and  federal  laws.    The  authoritv 


186  CONSTITUTIOXAL    LAW    OF   THE    UNITED    STATES. 

by  the  juaction  of  two  or  more  states,  or  parts  of  states, 
without  the  consent  of  the  legislatures  of  the  states 
concerned,  as  well  as  of  the  congress  "  (art.  IV.,  sec.  3, 
^  1).  ^  It  is  certain  that  this  is  what  the  fathers  had  in 
mind,  because  in  the  ordinance  of  IT'^T,  already  men- 
tioned, the  formation  of  "not  more  than  ''  five  new  states 
out  of  part  of  this  territorial  domain  and  their  admission 
into  the  Union  had  been  taken  into  view. 

Accordingly,  congress,  in  organizing  territories,  has 
always  aimed,  not  to  act  from  the  stand-point  of  colonial 
administration,  but,  on  the  contrary,  to  ascertain  the  life- 
forms  adapted  to  an  embryonic  state.  This  explains,  too, 
the  different  "grades."  The  more  nearly  a  territory 
approaches  the  end  of  its  territorial  existence, —  its  trans- 
formation into  a  state, —  that  is,  the  more  the  number  of  its 

of  the  legislature  extends  "to  all  legitimate  objects  of  legislation," 
but  congress  reserves  "  the  primal  disposal  of  the  soil."  Federal 
property  cannot  be  taxed  at  all,  and  the  property  of  non-residents 
cannot  be  taxed  higher  than  that  of  residents.  The  legislature  can- 
not grant  private  franchises  and  special  privileges ;  that  is,  corporate 
rights  can  be  granted  only  by  general  laws.  Justices  of  the  peace 
and  general  officers  of  the  militia  are  chosen  in  tlie  manner  prescribed 
by  the  legislature.  Whether  and  how  the  township,  district  and 
county  officers  are  to  be  appointed  or  elected  is  left  to  the  legislature. 
Members  of  the  legislature  are  paid  $6  a  day,  besides  mileage.  All 
payments  for  the  supjwrt  of  the  territorial  government  from  the  na- 
tional treasury  are  made  only  upon  vouchers  signed  by  the  secretary 
of  the  treasury.  The  supreme  court  consists  of  a  chief  justice  and 
two  as.sociate  justices.  Two  judges  must  be  present  to  decide  a 
case.  The  territorj'  is  divided  int(j  three  judicial  districts.  Eacli  of  the 
judges  of  tlie  supreme  court  is  judge  of  one  of  tlie  districts.  He  must 
live  in  his  district.  Cases  are  heard  in  the  supreme  court  only  upon 
appeal.  Probate  courts  pass  upon  matters  of  inheritance.  Justices 
of  the  peace  have  no  jurisdiction  in  litigation  over  real  estate.  All 
other  regulations  as  to  the  different  courts  are  left  to  the  legislature. 
1  Congress  nevertheless  held  itself  authorized,  after  the  secession  of 
Virginia,  to  empower  the  loyal  part  of  the  state  to  organize  itself  as 
an  independent  state,  under  the  name  of  West  Virginia. 


THE    FEDERAL   CONSTITUTION.  187 

people,  the  density  of  its  population,^  and  its  wealth,'*  cor- 
respond to  the  claims  which  a  state  must  meet,  the  greater 
is  the  freedom  of  action  granted  it.  The  times  and  methods 
of  admitting  new  states  have  varied  greatly.  Congress 
is  under  no  constitutional  obligation  either  in  the  one  or 
the  other  respect,  since  it  may^  but  never  mui^t^  admit  new 
states.  As  to  the  time  of  admission,  the  general  rule  has 
been  that  a  territory  must  have  as  many  inhabitants  as 
are  necessary  to  elect  a  member  of  the  house  of  repre- 
sentatives,  but  this  rule  has  not  been  always  strictly  fol- 
lowed.* As  to  the  manner  of  admission,  the  general  rule 
has  been  that  congress,  by  an  "  enabling  act,"  has  per- 
mitted the  people  of  a  territory  to  frame  and  adopt  a 
state  constitution  in  a  constitutional  convention.  It  is  true 
that  several  territories  went  to  work  without  this  author- 
ization of  congress,  and  were  nevertheless  admitted  by  it. 
Other  irregularities,  too,  at  least  extra-legal  if  not  illegal, 
have  occurred,  and,  although  objected  to,  have  not  been 
regarded  as  sufficient  reason  for  refusing  admission.*    A 

1  The  very  large  territories  have  been  repeatedly  divided  by  con- 
gi'ess,  partly  in  order  not  to  let  the  new  states  be  too  unequal  in  size, 
and  partly  in  order  not  to  hamper  the  more  densely  settled  jjortions 
with  those  slower  of  development.  The  boundaries  of  a  state  thus  by 
no  means  always  coincide  with  the  original  limits  of  tJie  territory  out 
of  which  it  is  formed.  Indeed,  parts  of  different  territories  may, 
under  certain  circumstances,  be  made  into  one  state. 

2  The  expenses  of  territorial  government  are  borne  by  the  Union, 
while  the  state  governments  are,  of  course,  supported  by  their  re- 
spective peoples. 

3  Not  only  have  states  been  admitted  before  the  population  had 
reached  the  required  number,  but  territories  with  a  population  far  in 
excess  of  this  number  have  been  refused  admission.  The  latter  was 
the  case  with  Utah  and  New  Mexico.  Mormonism  with  its  polygamy 
kept  out  Utah,  and  the  predominance  of  Spaniards  and  Indians  in  the 
population  kept  out  New  Mexico. 

*  All  the  instances  in  point  will  be  found  in  Jameson,  The  Constitu- 
tional Convention. 


ISS  CONSTITUTIONAL    LAW    OF    TIIK    UNITED    STATES. 

popular  vote  on  the  work  of  the  convention  has  not  been 
deemed  absohitelv  necessary.  The  new  constitution, 
however,  is  always  subject  to  the  api)roval  of  congress, 
which  has  virtually  already,  by  the  enabling  act,  ordered 
the  admission  of  the  state  in  case  the  conditions  set  forth 
in  that  act  are  fulfilled.  The  question  of  the  limits  of 
the  right  to  impose  conditions  has  repeatedly  given  rise 
to  violent  ])arliamentary  contests.  The  equality  of  the 
states  is  a  fundamental  principle  of  the  constitution. 
Hence  it  has  been  argued  that  conditions  which  limited 
the  right  of  self-government,  in  comparison  with  the  posi- 
tion in  constitutional  law  of  the  other  states,  were  inad- 
missible, and  that  they  could  not  be  enforced ;  because, 
as  soon  as  the  admission  has  taken  place,  the  state  has 
become  complete  master  of  its  freedom  of  action.  Con- 
gress, however,  in  a  considerable  number  of  instances,  has 
imposed  such  conditions,  and  has  also  demanded  the 
assurance  that  the  state  constitution  should  never  be 
changed  in  this  or  that  respect.^  But,  as  congress  never 
must  admit  a  state,  the  imposition  of  conditions  of  any 
sort  cannot  be  hindered,  if  they  be  not  directly  unconsti- 
tutional. And  if  a  state  promises  not  to  make  use  of  a 
certain  right  guarantied  it  by  the  constitution,  this  is  not 
unconstitutional;  it  is  simply  not  obligatory,  from  the 
stand-point  of  constitutional  law.  The  imposition  and 
adoption  of  such  conditions  are  to  be  regarded  as  a  polit- 
ical pact,  to  the  maintenance  of  which  the  state  is  bound 
by  truth  and  faith,  but  not  by  constitutional  law.  It 
must  be  admitted  that  such  compacts  do  not  respond 

1  This  hitter  occurred  particularly  in  regai-d  to  the  seceded  states 
before  they  were  again  allowed  representation  in  congress.  The  argu- 
ment against  the  constitutional  authority  of  congress  aj^plies  to  these 
cases  in  the  same  degree  as  to  new  states  about  to  be  admitted.  For 
a  collection  of  the  facts  in  question,  see  Cooley,  Frinciplea,  174-177. 


THE    FEDERAL   CONSTITUTION.  189 

to  the  spirit  of  the  constitution.  Congress  would  hardly 
have  required  them,  and,  if  it  had  done  so,  would  hardly 
have  commanded  public  approval,  if  the  slavery  question, 
and  later  on  the  civil  war  and  the  abolition  of  slavery, 
had  not  brought  about  a  condition  of  affairs  in  which 
legal  opinions  were,  and  had  to  be,  pressed  into  the  back- 
ground by  political  and  moral  considerations.  Conditions 
of  another  kind,  as  to  boundaries,  etc.,  of  course  cannot 
be  objected  to  as  in  any  way  opposed  to  the  constitutional 
law.  If  congress  has  jiot  provided  that  the  state  shall  be 
admitted  upon  the  fulfillment  of  the  conditions  imposed 
by  it,  this  happens  as  a  matter  of  law  by  a  proclamation 
of  the  president.  According  to  the  theory  of  American 
politicians  and  publicists,  the  transformation  of  the  terri- 
tory into  a  state  has  already  taken  place  before  its  admis- 
sion; for,  they  allege,  a  state  must  exist  in  order  to  have 
a  state  admitted.  They  have  never,  however,  answered,  to 
my  knowledge,  the  question  as  to  what  relation  prevails  if 
congress,  after  the  passage  of  an  enabling  act,  and  the 
consequent  formation  and  adoption  of  a  constitution  by  a 
constitutional  convention,  should  nevertheless,  for  some 
reason,  exercise  its  undoubted  right  to  refuse  admission 
to  the  state.  In  my  opinion,  the  failure  to  regard  the 
admission  of  a  state  as  the  completion  of  its  transforma- 
tion from  a  territory  involves  some  serious  results.  The 
territorial  domain  of  the  United  States  can  be  trans- 
formed, as  a  matter  of  constitutional  law,  only  into  states 
of  the  Union,  and  a  state  can  therefore  come  into  exist- 
ence only  when  it  is  one  of  the  states  of  the  United  States ; 
that  is,  a  co-ordinate  and  recognized  constituent  member 
of  the  Union.  The  change  of  a  territory  into  a  state  has 
no  legal  effect  upon  the  status  of  the  public  lands.  Except 
so  far  as  they  are  granted  expressly  to  the  state  by  con- 
gress for  definite  purposes  fschools),  they  do  not  pass  into 


190  CONSTITUTIONAL    LAW    OF    THE    UNITKD    STATES. 

its  possession,  but  remain  property  of  the  Union,  and  are 
subject  to  the  same  legal  provisions  as  before. 

The  admitted  states  have  all  been  formed  out  of  parts 
of  the  states  of  the  original  Union  or  from  the  territorial 
domains  of  the  Union.  Texas  is  the  only  exception.  It 
was  an  independent  republic.  Its  incorporation  into  the 
Union  met  with  vigorous  opposition,  on  not  only  political 
but  constitutional  grounds.  The  way  in  which  this  was 
done — by  a  "joint  resolution "' of  both  houses  of  con- 
gress after  a  treaty  of  annexation  Jiad  failed  to  receive 
the  necessary  majority  in  the  senate —  was  a  good  cause 
for  serious  objection.  Nevertheless  the  assertion  that  an 
independent  nation  cannot  be  directly  transformed  into 
a  state  of  the  Union  seems  unfounded,  for  the  power  to 
admit  new  states  is  granted  wholly  without  conditions. 

THE  POWERS  OF  THE  PRESIDENT. 

§  55,  Powers  and  Duties  of  the  President.  It  has 
been  said  that  the  president  of  the  United  States  is 
mio-htier  than  the  rulers  of  modern  England.  This  is  un- 
doubtedly  true.^  To  correctly  estimate  the  powers  of 
the  president,  one  fact  must  be  taken  into  consideration, 
which  is  often  wholly  overlooked  or  insufficiently  a])pre- 
ciated.  Pie  has  of  course  certain  very  important  powers 
which  he  exercises  in  full  independence  of  the  other  fac- 
tors of  government.  But  this  full  independence  in  the 
most  essential  matters  is  restricted  to  taking  the  initia- 
tive.    His  acts  require  the  sanction  of  the  senate  in  order 

1  Of  those  powers  of  the  president  already  discussed  in  anotlier  con- 
nection —  the  right  to  require  written  opinions  from  the  heads  of 
departments,  the  so-called  veto,  his  powers  as  to  convening  and  ad- 
journing congress  and  his  right  and  duty  to  report  to  congress  upon 
the  state  of  the  Union  and  to  make  recommendations  —  no  further 
mention  will  be  made  here. 


THE   FEDERAL   CONSTITUTION".  191 

to  be  perfected.  In  another  set  of  his  powers  he  is  like- 
wise independent  of  congress  to  this  extent,  that  it  cannot 
of  itself  either  diminish  or  increase  them.  But  the  oppor- 
tunity for  the  exercise  of  these  powers  is  given  the  presi- 
dent only  by  law  and  the  way  in  which  he  shall  exercise 
them  is  defined  by  law.  To  a  great  extent  congress  can 
determine  how  widely  or  how  narrowly  it  will  draw  the 
limits  of  his  independence.  It  can  grant  him  a  fullness 
of  power  thatunder  certain  circumstances  is  little  inferior 
to  that  of  a  Eoman  dictator.  It  can  also  bring  him  so 
sharply  under  its  own  control  and  bind  his  hands  so 
closely,  that  his  constitutional  position  as  a  co-ordinate 
factor  of  the  government  is  seriously  endangered  and 
the  interests  of  the  country  are  gravely  injured  by  the 
weakness  of  the  executive  power.  If  congress  wishes  to 
abuse  its  powers,  it  can  easily  bring  down  the  president  — 
so  far  as  a  number  of  his  most  important  powers  of  an 
eminently  political  character  are  concerned  —  to  the 
level  of  the  third  duty  imposed  upon  him  by  the  consti- 
tution,—  that  of  acting  merely  as  the  executive  organ  of 
the  legislative  Avill  of  congress.' 

1  It  has  been  boldly  asserted  that  parliamentary  government  as  it 
is  known  in  Europe  was  entirely  excluded  in  the  United  States  by  the 
constitutional  organization  of  the  federal  government.  On  the  con- 
trary the  go\ernment  vests  directly  in  congress  to  such  an  extent 
that  in  a  book  just  published,  which  deals  incisively  with  this  ques- 
tion, the  author  says:  "  I  know  not  how  better  to  describe  our  gov- 
ernment in  a  single  phrase  than  by  calling  it  a  government  by  the 
chairmen  of  the  standing  committees  of  congress.'"  (W.  Wilson, 
Congressional  Government:  a  Study  in  American  Politics,  Boston, 
1885.)  This  exaggerates,  as  all  statements  must  exaggerate  which 
seek  in  one  pointed  phrase  to  define  great  and  complicated  relations. 
Not  only,  however,  is  there  much  truth  in  the  assertion,  but  this 
truth  is  so  clear,  and  its  pre-eminent  significance  is  so  plain,  that  for 
some  years  public  attention  has  been  more  and  more  strongly  drawn 
to  it.    The  framers  of  the  constitutioa  did  not  expect  this  develop- 


192  CONSTITUTIONAL    LAW    OF    THE    UMTKD    STATES. 

§  56.  MiLiTAKY  Power.  The  president  is  commander- 
in-chief  of  the  army  and  navy,  and  also  of  the  militia, 
when  the  latter  is  called  into  the  actnal  service  of  the 
Ignited  States  (art.  II.,  sec.  2,  §  1).  This  is  all  the  consti- 
tution has  to  say  as  to  the  military  power  of  the  presi- 
dent. This  clause  in  its  blunt  simplicity  is  the  best 
illustration  of  the  maxim  of  American  constitutional  law 
already  mentioned,  that  the  constitution  enumerates  but 
does  not  define  the  powers  of  the  federal  government. 
Congress  can  appoint  no  other  commander-in-chief,  and 
can  withdraw  fi-om  the  president  not  the  slightest  part 
of  the  powers  appertaining  to  the  commander-in-chief. 
This  is  without  doubt,  as  the  constitution  confers  that 
office  upon  him  with  a  categorical  "shall  be."  But  what 
are  the  powers  appertaining  to  the  office  proprio  jure? 
The  constitution  cannot  possibly  mean  that  the  expres- 
sion "  commander-in-chief  "  should  first  be  given  a  con- 
crete meaning  by  legislation,  for  the  thought  underlying 

ment.  It  undoubtedly  runs  directly  counter  to  their  intentions. 
Tliey  created  a  separate  executive  because  their  experience  led  them 
to  reject  congressional  government  on  principle.  They  had  recog- 
nized the  fact  that  the  many-headed  legislative  power  not  only  could 
not  govern  well,  but  in  the  long  run  could  not  govern  at  all ;  and  so 
far  as  the  facts  correspond  with  Wilson's  assertion,  they  have  demon- 
strated this  truth  anew.  He  calls  his  study  "  Congressional  Govern- 
ment;" yet  he  does  not  say  that  congress  governs,  but  that  its 
standing  committees  or  rather  their  chairmen  do;  and  that,  too,  not 
in  the  sense  that  they  are  together  actually  the  government,  but  that 
each  of  them  is  a  particular  and  isolated  pait  of  the  government.  So 
far  as  his  assertion  is  well  founded,  this  "  congressional  government " 
is  therefore  in  a  great  measure  a  systematic  laxity  of  government, 
because  the  organic  coherence,  the  uniform  guiding  thought  and 
will,  and  the  legal  binding  of  the  parts  into  a  comprehensive  whole 
are  wanting.  Yet,  however,  matters  of  constitutional  law  and  of 
fact  may  be  considered  from  a  political  stand-point,  this  is  certain, 
that  in  law  and  in  fact  America  is  partly  in  advance  of  Europe  and 
partly  behind  her  in  parliamentary  government. 


THE   FEDERAL   CONSTITUTION.  193 

this  provision  is  manifestly  that  of  ensuring?  the  greatest 
energy  in  the  application  of  the  rnilitarj'^  strength  of  the 
country  by  entrusting  its  direction  to  one  hand.  But,  as 
we  have  seen,  all  military  legislation  is  entrusted  to  con- 
gress, and  the  president  is  simply  the  commander-in-chief 
and  not  at  all  the  lord  of  peace  and  war.  It  is  thus  very 
difficult,  if  not  impossible,  to  draw  the  line  of  demarca- 
tion with  absolute  certainty  between  the  authority  of  con- 
gress and  that  of  the  president.  The  general  principles 
of  demarcation,  however,  can  be  established  without 
difficulty,  and  their  practical  application  has  hitherto  led 
to  relatively  very  few  important  conflicts.  Congress 
must  regulate  by  law  whatever  is  of  general  importance 
and  bears  a  permanent  character,  but  considerations  of 
expediency  may  demand  that  even  within  this,  its  own 
domain,  it  should  leave  the  president  free  to  act  at  his 
own  discretion,  especially  in  the  more  technical  matters. 
Of  course  it  is  not  forbidden  to  do  this.  On  the  other 
hand,  the  president  alone  must  determine  how  the  mili- 
tary force  shall  be  employed,  and  he  must  make  all  pro- 
visions, temporary  and  not  general  in  their  nature, 
because,  from  the  nature  of  things,  these  must  be  adapted 
to  special  circumstances.  Congress  —  to  make  this  rela- 
tion clear  by  some  illustrations — provides  where  forts 
shall  be  built  and  what  kind  of  forts  they  shall  be,  how 
many  and  what  kind  of  arms  are  to  be  provided,  and 
how  the  men  are  to  be  distributed  amono;  the  different 

r  " 

branches  of  the  service ;  but  as  to  what  the  strength  and 
composition  of  the  garrisons  are  to  be,  how  the  arms  and 
ammunition  are  to  be  distributed,  how  and  where  the 
army  and  navy  are  to  be  stationed  and  moved, —  as  to  all 
this,  congress  can  give  the  president  no  directions  what- 
ever. In  war  the  entire  technical  direction  of  affairs  is 
thus  incumbent  upon  the  president.  Congress  has  only 
18 


194  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

to  decide  whether  there  shall  be  war  and  what  means  it 
will  grant  the  president  with  which  to  conduct  the  war; 
but  how  the  war  declared  by  congress  shall  be  conducted 
by  the  means  granted  by  it  is  the  exclusive  affair  of  the 
president.  Congress  may  criticise,  may  express  wishes, 
may  pass  resolutions,  but  it  can  prescribe  absolutely 
nothing  to  the  president,  even  though  his  acts  and  omis- 
sions be  fraught  with  political  consequences  of  the  most 
pre-eminent  importance,  as,  for  example,  the  declaration 
of  a  blockade  may  be  under  certain  circumstances.  This 
principle  was  extended  so  far  during  the  civil  war  that  it 
was  acknowledged  to  be  his  right  to  determine  whether 
and  how  far  the  rebels  were  to  be  regarded  as  a  war- 
making  power;  that  is,  how  far  the  war  should  be  con- 
ducted pursuant  to  the  provisions  of  the  law  of  nations.^ 
Accordingly,  this  war-power  of  the  president  is  not  lim- 
ited to  matters  involved  directly  in  the  conduct  of  war, 
but  extends  beyond  purely  military  actions  into  the  do- 
main of  the  exceptional  relations  which  may  result  from 
war.  If,  for  instance,  in  a  war  with  a  foreign  power  a 
territory  has  been  conquered,  the  president  can  put  a 
military  governor  over  it,  and  this  military  government 
will  end  only  upon  the  conclusion  of  peace,  and  in  case  of 
a  cession  of  the  territory  only  upon  legislation  in  the 
matter  by  congress.  This  is  also  true  of  rebellious  states 
vanquished  in  civil  war.  In  both  cases  the  president  may 
estabHsh  a  provisional  civil  government,  Avith  power  to 
organize  courts,  so  that  a  well-ordered  administration  of 
justice  is  rendered  possible.  In  the  case  of  a  conquered 
rebel  state,  the  quickest  practicable  supplanting  of  mili- 
tary government  by  a  provisional  civil  government  is  to 
be  regarded  as  a  duty,  in  so  far  as  the  principle  applies 
that  the  president  is  not  authorized  to  use  military  power 
1  The  Prize  Cases,  Black,  II.,  635. 


THE    FEDERAL   CONSTITUTION.  195 

where  the  laws  can  be  enforced  without  such  aid.  The 
president  has  the  greatest  liberty  in  the  choice  of  means 
not  only  to  attain  the  most  immediate  purpose  of  war, — 
the  subjugation  of  the  enemy,  —  but  also  to  meet  the 
further  task  implied  in  this,  to  deprive  the  enemy  of  the 
power  of  levying  war  again.'  But  in  all  this  he  must 
steadily  keep  in  mind  that  the  ultimate  purpose  is  the 
restoration  of  the  normal,  the  constitutional  condition  of 
peace.  This  maxim  leads  to  the  further  principle  of  con- 
stitutional law,  that  the  immense  power  which  the  presi- 
dent has  as  commander-in-chief  in  time  of  war  must 
be  exerted  to  its  full  extent  only  where  the  authority  of 
the  federal  government  cannot  be  exerted  by  peaceful 
methods;  that  is,  where  the  actual  condition  of  war  ex- 
ists. It  is  only  when  this  is  the  case,  and  the  ordinary 
courts  in  consequence  of  the  war  cannot  exercise  their 
functions,  that  military  courts  can  sit.  Where  these 
premises  do  not  exist,  no  one,  unless  he  belongs  to  the 
army,  can  be  punished  by  the  military  authorities.^  Spies 
are  an  exception.  As  this  exception  must  be  acknowl- 
edged to  be  a  necessity,  and  as  it  is  not  always  certain 
whether  the  premises  already  mentioned  exist  or  not, 
prominent  American  publicists  take  the  view  that  it  is 
not  possible  to  bring  all  cases  under  a  fixed  rule,  but  that 
the  special  circumstances  of  each  must  be  taken  into  ac- 
count, even  in  a  decision  upon  grounds  of  constitutional 
law.^  It  is  unquestionable  that  the  constitution  recog- 
nizes the  possibility  of  its  being  necessary  in  time  of  war, 

J  Lincoln  justified  his  emancipation  proclamation,  as  is  well  known, 
upon  the  ground  that  the  freeing  of  the  slaves  was  a  means  of  sub- 
jugating the  rebels. 

^Ex  parte  Milligan,  Wallace,  IV.,  127. 

3  The  difficult  chapter  of  the  so-called  "  war-powers"  of  the  differ- 
ent factors  of  government  has  been  treated  by  W.  Whiting  in  a 
strong  volume  entitled  War  Powers  under  the  Constitution  of  the 


10(3  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

even  where  the  efficiency  of  legal  authority  is  entirely 
unimpeded,  to  suspend  the  oj^eration  of  law.  It  ex- 
pressly grants  a  "  war-power  "  by  which  every  inhabitant 
of  the  Union  —  whether  or  no  the  district  in  which  he 
resides  is  within  the  limits  of  the  theatre  of  war  or  not  — 
ma}'  be  deprived  for  the  whole  duration  of  the  war  of 
one  of  the  most  substantial  safeguards  of  the  law.  It 
is,  however,  another  question  whether  the  president  as 
commander-in-chief  can  bring  about  this  condition  of 
affairs.  This  question  may  now  be  regarded  as  decided 
against  him. 

The  constitution  provides  that  "  the  privilege  of  the 
writ  of  Jiahcas  corpus  shall  not  be  suspended  unless  when, 
incases  of  rebellion  or  invasion,  the  public  safety  may  re- 
quire it '"  (art.  I.,  sec.  9,  §  2).  This  states  only  in  what 
cases  the  writ  may  be  suspended,  but  not  who  is  to  order 
the  suspension.  At  the  beginning  of  the  civil  war,  Attor- 
nej'-general  Bates  claimed  for  the  president  the  right  to 
refuse  obedience  to  a  writ  of  habeas  corpus}  The  final 
result  of  the  conflicts  between  the  president  and  the 
courts,  and  the  earnest  discussions  caused  by  them,  was, 
however,  a  decided  victory  for  the  doctrine  that  the  sus- 
pension is  a  legislative  act,  and  can  therefore  be  ordered 
only  by  congress  or  by  the  president  when  and  only 
when  he  has  been  authorized  to  do  so  by  congress.^     An 

United  States.  The  conclusions  which  the  author  reaches  have,  how- 
ever, been  much  questioned. 

Indisputably  the  doctrine  last  mentioned  in  the  text  must  not  only 
be  assented  to,  but  must  be  given  great  scope,  in  order  to  hold  con- 
stitutional the  sentence  by  a  military  commission  of  Mrs.  Surratt,  an 
accessory  of  Booth  in  the  assassination  of  Lincoln.  The  District  of 
OMumbia  was  at  the  time,  however,  under  military  law. 

•  Op.  of  the  Attorneys- General,  X.,  74. 

2  See  Horace  Binney,  The  Privilege  of  the  Writ  of  Habeas  Corpus, 
and,  also,  Martin  vs.  Mott,  Wheaton,  XII.,  19.     A  vote  of  the  house 


THE    FEDERAL   CONSTITUTION.  197 

act  of  March  3, 1863,  authorized  the  president  during  the 
continuance  of  the  rebellion  to  suspend  the  privilege  in 
the  entire  domain  of  the  Union  or  any  part  thereof,  if  he 
deemed  it  necessary.  In  a  proclamation  of  September 
15,  1803,  Lincoln  made  use  of  this  permission.  This  law, 
declared  to  be  constitutional  by  the  federal  supreme  court, 
shows  that  this  war-power  may  be  given  the  widest 
scope,  but  the  same  decision  holds  that  the  provision  must 
be  strictly  construed,  in  accordance  with  its  verbal  tenor.^ 
Not  only  in  case  of  a  war  with  a  foreign  power  must 
the  writ  be  suspended  only  in  the  event  of  an  invasion, 
but  the  suspension  simply  denies  to  a  prisoner  the  right 
to  sue  out  the  writ;  it  does  not  authorize  arrest  without 
legal  cause.2 

It  is  beyond  doubt  that  the  president  has  the  power  of 
putting  himself  personally  at  the  head  of  the  army  in 
war  and  of  taking  its  immediate  direction  into  his  own 
hands,  but  the  view  has  always  prevailed  that  this  would 
not  correspond  with  the  intent  of  the  constitution.' 

of  representatives,  February  19, 1807,  can,  however,  be  interpreted  as  a 
direct  recognition  of  the  principle  that  there  may  be  circumstances 
under  which  the  privilege  of  habeas  corpus,  even  without  a  legisla- 
tive act,  must  give  way  to  the  public  safety. 

^  Ex  parte  Milligan,  Wallace,  IV.,  133. 

-^Ex  parte  Milligan,  Wallace,  IV.,  133. 

'  Jefferson  Davis,  the  president  of  the  Confederate  States,  also  tried 
the  rOle  of  a  general. 

Some  of  the  powers  granted  by  law  to  the  president  as  commander- 
in-chief  deserve  special  mention.  His  right  of  promotion  is  very 
limited.  In  general  the  principle  prevails  that  promotion  from  rank 
to  rank  shall  depend  upon  the  time  of  service.  In  war,  however,  the 
president  may,  with  the  consent  of  the  senate,  as  a  reward  for  dis- 
tinguished services  against  the  enemy,  grant  a  higher  rank  "by 
brevet."  The  legal  position  of  an  officer  in  the  service  will  not  be 
changed  of  itself  by  brevet-promotion,  but  the  president  may  assign 
the  brevet-officer  to  duty  according  to  the  rank  of  which  he  has  only 
the  title.     In  time  of  peace,  there  can  be  no  dismissal  from  the 


198  CONSTITTTTIONAL    LA-W   OF   THE    UNITED    STATES. 

FOREIGN  RELATIONS. 

^57.  Intercoi'kse  with  Foreign  Powers.  In  Ameri- 
can works  on  const itntional  law  the  statement  is  fre- 
(juentl y  found  that  tiie  foreign  relations  of  the  Union  are 

service,  except  upon  the  judgment  of  a  court-martial  or  in  mitiga- 
tion of  a  judgment.  If  an  officer  ia  absent  without  furlough  for 
more  tlian  three  months,  the  president  can  cashier  him  for  desertion. 
If  he  has  served  forty  years,  he  is  entitled  to  be  retired  from  active 
service.  After  thirty  years'  service,  an  officer  may  petition  to  be 
retu-ed ;  it  is  then  optional  with  the  president  whether  or  no  to  givant 
the  i^etition.  If  an  officer  is  sixty  years  of  age,  or  has  ser^  ed  for 
forty-five  years,  the  president  may  retii'e  him.  The  secretary  of 
war,  when  directed  by  the  president,  convokes  from  time  to  time  an 
army  retiring  board,  formed  of  officers  and  military  surgeons,  in 
order  to  examine  and  determine  whether  and  how  officers  have  be- 
come disqualified  for  service.  The  decision  of  the  retiring  board 
must  be  approved  by  the  president.  Courts-martial  are  of  two 
classes:  the  "general"  and  the  regimental  or  garrison  courts-mar- 
tial. The  former,  in  times  of  peace,  can  be  organized  only  by 
direction  of  the  general-in-chief  commanding  the  entire  army  or  by 
a  general  in  command  of  a  separate  army  or  "  of  a  particular  de- 
partment ; "  in  time  of  war,  they  may  be  convened  also  by  division 
and  brigade  commanders.  They  should  when  i)OSsible  consist  of 
thirteen  officers  and  must  consist  of  at  least  five.  Their  judgments 
are  subject  to  the  confirmation  of  the  president  in  the  following- 
cases  :  When  the  commanders  named  are  accusers  and  the  accused  is 
an  officer  under  their  command  (in  this  case  the  president  appoints 
the  members  of  the  court-martial) ;  when  in  time  of  peace  the  sen- 
tence is  dismissal  from  the  service ;  when  the  sentenced  person  is  a 
general ;  when  the  sentence  is  deatli,  except  in  war  in  cases  of  a  spy, 
of  mutiny,  of  desertion,  of  umrder,  of  "guerilla-marauders,"'  and 
also  of  other  high  crimes.  A  death  sentence,  moi-eover,  requires  a 
two-thirds  majority  of  the  court-martial.  Officers  cannot  be  tried 
l)efore  the  lower  military  tribunals;  the  decisions  of  these  latter 
can  extend  only  to  the  deprival  of  a  month's  wages,  and  imprison- 
ment for  a  month,  with  or  without  "  hard  labor."  There  is  a  bureau 
of  military  justice,  composed  of  a  judge-advocate-general,  an  as- 
sistant judge-advocate-general,  and  eight  judge-advocates.  Justice 
is  administered  in  the  navy  in  substantially  the  same  way.  K.  A. 
Ives,  Mililary  Law  of  the  United  States,  N.  Y.,  1879. 


THE   FEDERAL   CONSTITUTION.  199 

the  exclusive  domain  of  the  president,  or  in  a  manner,  of 
the  president  and  the  senate.  This  is  manifestly  incor- 
rect. Congress  has,  as  we  have  already  seen,  a  number 
of  the  most  important  powers  in  relation  to  international 
affairs,^  Unlimited,  that  statement  is  true  only  in  regard 
to  the  intercourse  of  the  Union  with  foreign  powers.  This 
is  accomplished  only  through  the  president,  but  he  must 
have  the  consent  of  the  senate  as  to  the  persons  by 
whom  he  is  to  be  served  in  this  respect.  He  "  shall  re- 
ceive embassadors  and  other  public  ministers  "  (art  II., 
sec.  3),  and  he  is  to  appoint,  with  the  consent  of  the  sen- 
ate, "embassadors,  other  public  ministers  and  consuls" 
(art.  II.,  sec.  2,  §  2).^    He  is  not  the  sole  bearer  of  the 

*0n  April  4,  18G4,  the  house  unanimously  adopted  a  resolution, 
which  declared  that  the  United  States  were  not  indifferent  spectators 
of  the  occurrences  in  Mexico  and  could  not  recognize  a  monarchical 
government  erected  in  America  under  the  auspices  of  a  European 
power  upon  the  ruins  of  a  republic.  {Congressional  Globe,  1st  Ses- 
sion, 38th  Congress,  p.  1408.)  The  secretary  of  state,  W.  H.  Seward, 
at  once  instructed  Dayton,  the  ambassador  at  Paris,  to  inform  the 
French  government  that  foreign  affairs  did  not  fall  within  the  juris- 
diction of  congi-ess.  The  house  of  representatives  in  turn,  on  De- 
cember 19,  1864,  declared  its  position  in  the  following  resolution: 
*'  Resolved,  That  congress  has  a  constitutional  right  to  an  authorita- 
tive voice  in  declaring  and  prescribing  the  foreign  policy  of  the 
United  States,  as  well  in  the  recognition  of  new  powers  as  in  other 
matters ;  and  it  is  the  constitutional  duty  of  the  executive  depart- 
ment to  respect  that  policy  not  less  in  diplomatic  negotiations  than  in 
the  use  of  the  national  force  when  authorized  by  law ;  and  the  pro- 
priety of  any  declaration  of  foreign  policy  by  congress  is  sufficiently 
proved  by  the  vote  which  pronounces  it ;  and  such  proposition  while 
pending  and  undetermined  "  (the  resolution  of  April  4  was  a  * '  joint " 
one  and  the  senate  had  not  yet  passed  upon  it)  "  is  not  a  fit  topic  of 
diplomatic  explanation  with  any  foreign  power."  The  first  part  of 
this  resolution  was  adopted  by  a  vote  of  one  hundred  and  eighteen 
to  eight,  and  the  second  —  beginning  "  and  the  propriety  " —  by  sixty- 
eight  to  fifty-eight.  (Congressional  Globe,  2d  Session,  38th  Congress, 
6r>-67.) 

-'  There  lias  been  much  controversy  over  the  question  as  to  whether 


200  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

p.)wcr  of  the  state  in  relation  to  foreign  countries,  but 
he  alone  re[)resents  it,  and  that,  too,  not  only  where 
one  nation  confronts  another,  but  also  where  the  rights 
and  interests  of  individuals  are  involved, —  so  far  as  they 
do  not  come  within  the  jurisdiction  of  the  courts.  This 
exclusive  right  of  the  president  to  represent  the  state- 
power  in  all  international  relations  must  not,  however, 
be  considered  as  only  a  formal  right.  He  is  also  a  co- 
bearer  of  the  state-power,  and  the  exclusive  representative 
right  involves  his  having  the  exclusive  right  of  initiative 
with  the  exception  of  the  powers  granted  congress  in  art. 
I.,  sec.  8,  §§  10,  11.'  Congress  is,  indeed,  free  to  express 
its  views  on  everything  affecting  rehitions  with  foreign 
powers,  not  only  by  criticism  of  the  ])rosidcnt's  policy  on 
the  part  of  individual  members,  but  also  by  formal  reso- 
lutions and  positive  propositions.  l>at  although  such 
action  always  has  considerable  actual  weight  and  will 
often  be  the  decisive  factor  in  the  conclusions  of  the 
president,  it  nevertheless  cannot  legall}^  bind  him  in  any 
way  whatevei*.  At  most,  there  may  be  a  doul)t  as  to 
whether  the  constitutional  provision  which  requires  the 
concurrence  of  the  senate  to  conclude  a  treaty  is  to  be  so 
understood  that  the  senate  has  a  certain,  so  to  speak,  di- 
rect participation  in  the  right  of  initiative  so  far  as  treaties 
are  concerned. 

§  58.  The  Tkeaty  Power.     The  constitution  says  that 
the  president  "  shall  have  power,  by  and  with  the  ad- 

und  liow  far  the  president  is  to  determine  at  what  foreign  courts  the 
United  States  shall  have  representatives,  and  of  what  kind  these 
representatives  shall  be.  The  actual  state  of  things  is,  that  the  pres- 
ident without  any  special  legal  authorization  nominates  ministers 
wliom  the  senate  either  confirms  or  does  not  confirm.  Fnally,  how- 
ever, the  decision  rests  with  congress,  for  ct)ngress  cannot  be  com- 
pelled to  appropriate  the  money  needed  for  the  ministers  appointed. 
1  The  powers  "  to  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water,"  etc. 


THE    FEDERAL   CONSTITUTION.  201 

vice  and  consent  of  the  senate,  to  make  treaties,  pro- 
vided two-thirds  of  the  senators  present  concur  "  (art.  II., 
sec.  2,  §  2).  The  words  "  by  and  with  the  advice  and  con- 
sent of  the  senate  "  appear  also  in  the  provision  as  to 
the  senate's  confirmation  of  nominees  to  office.  And  al- 
though debates  often  take  place  over  the  nominations 
sent  in  by  the  president,  yet  the  action  of  the  senate  is 
limited  to  the  exercise  of  the  right  of  saying  yea  or  nay. 
The  provision  was  never  interpreted  to  mean  that  the 
senate  was  empowered  as  such,  and  officially,  to  advise 
the  president  to  nominate  a  certain  other  person  for  the 
particular  office.  The  question  is,  therefore,  whether  in 
the  clause  concerning  the  making  of  treaties  the  same 
words  are  to  be  interpreted  in  the  same  manner,  that  is, 
that  the  senate  is  also  authorized  only  to  say  yea  or  nay 
when  a  treaty  is  placed  before  it  for  ratification  by  the 
president.  The  actual  practice  has  always  been  for  the 
presidents  to  call  for  the  "  advice "  of  the  senate  only 
when  they  sought  its  "  consent,"  that  is,  when  they  pre- 
sented to  it  the  treaties  perfected  up  to  the  point  of  its 
assent.  And  this  was  never  held  to  be  unconstitutional. 
But  it  has  also  happened  that  a  president  before  negoti- 
ating a  treaty  has  asked  the  senate  for  advice;  and  his 
right  to  do  so  has  never  been  disputed.^  And  it  has  like- 
wise happened  that  the  senate  has  said  neither  simply 
yea  nor  simply  nay,  but  has  amended  the  treaty  laid  be- 
fore it ;  and  this  has  not  been  regarded  as  unconstitu- 
tional.^ I  cannot  therefore  see  why  the  senate  should 
not  be  authorized  to  request  the  president  to  open  nego- 
tiations for  the  purpose  of  concluding  a  treaty.  But  the 
president  would  unquestionably  not  be  bound  to  obey  the 

1  Washington  did  this  repeatedly,  and  Polk  did  it  in  1846  as  to  the 
treaty  with  England  relative  to  Oregon. 

2  Thus,  for  example,  the  Gadsden  treaty  of  December  30, 1853.     See 
my  Constitutional  History,  V.,  pp.  6-9. 


202  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

request,  and  the  expression  of  such  a  wish  is  undoubtedly 
also  within  the  power  of  the  house  of  representatives. 
A  constitutional  law  claim  of  the  senate  to  a  share  in  the 
right  of  initiative,  however  indirect,  cannot  bear  discus- 
sion, except  in  so  far  as  the  right  of  amendment  is  to  be 
understood  in  that  sense. 

As  to  the  extent  of  the  treaty-])ower,  the  constitu- 
tion says  nothing,  but  it  evidently  cannot  be  unlimited. 
The  power  exists  only  under  the  constitution,  and  every 
treaty-stipulation  inconsistent  with  a  provision  of  the  con- 
stitution is  therefore  inadmissible  and  according  to  con- 
stitutional law  ipso  fdcto  null  and  void.  Simple  and  self- 
evident  as  this  principle  is  in  theory,  yet  it  may  be  very 
difficult  under  certain  circumstances  to  decide  whether  or 
not  it  has  been  transgressed  in  fact.  Indeed,  the  chief  dif- 
ficulty arises  from  the  question  of  the  relation  the  treaty- 
power  of  the  president  with  the  concurrence-power  of  the 
senate  bears  to  the  legislative  power  of  congress.  This 
question  is  answered  by  saying  that  these  powers  must  be 
co-ordinate,  for  treaties  like  laws  are  ''  sovereign  acts," 
which  differ  from  laws  only  in  form  and  in  the  organs  by 
which  the  sovereign  will  expresses  itself.  It  follows  from 
this  principle  that  a  law  can  be  repealed  by  a  treaty  ^  as 
well  as  a  treaty  by  a  law.-  If  a  treaty  and  a  law  are  in 
opposition,  tiieir  respective  dates  must  decide  whether  the 
one  or  the  other  is  to  be  regarded  as  repealed.*  Neither 
the  principle  nor  the  correctness  of  these  conclusions  from 

1  FoHter  vs.  Neilson,Fct;rs,  II.,  253. 

2  The  Cherokee  Tobacco,  Wallace,  XI.,  616. 

3  Foster  vs.  Neilson,  Peters,  II.,  2ii'i,  .314;  Doe  vs.  Braden,  Howard, 
XVI.,  6o5.  '•  The  courts  of  the  United  States  cannot  hold  a  law  un- 
constitutional upon  the  ground  that  it  violates  treaty  obligations. 
Such  a  question  is  an  international  one,  to  be  settled  by  the  foreign 
nations  interesteil  therein  and  the  political  department  of  the  gov- 
ernment." Gray  vs.  Clinton  Bridge,  7  American  Law  Register  (N.  S.), 
l.jl;  Hammond,  I.,  22,  §54. 


THE   FEDERAL   CONSTITUTION.  203 

it  can  well  be  disputed,  and  they  are  at  any  rate  valid 
constitutional  law.  But  in  spite  of  this  it  must  be  admitted 
that  the  doctrine  has  its  doubtful  side,  both  in  theory  and 
practice.  It  must  be  called  at  least  an  anomaly,  that  by 
the  ex  -parte  action  of  the  president  and  two-thirds  of  the 
senators  present  (who  may  be  only  a  minority  of  the  whole 
senate),  a  law  can  be  repealed,  the  passage  of  which  re- 
quired the  concurrence  of  the  house  of  representatives  with 
the  senate  and  president  or  a  two-thirds  majority  of  each 
house  of  congress.  The  repeal  of  a  treaty  by  the  enact- 
ment of  a  law  may,  moreover,  lead  the  more  easily  to 
serious  consequences,  because  the  incompatibility  of  the 
law  and  of  the  treaty  may  not  be  so  clearly  manifest  that 
the  foreign  power  concerned  will  immediately  take  notice 
of  the  law.  It  is  in  nowise  inconceivable  that  congress 
itself  might  know  nothing  of  Avhat  it  had  done,  so  that 
only  after  a  long  time  would  the  fact  be  established  by 
judicial  decision,  that  in  this  indirect  manner  a  treaty  was 
overthrown,  the  repeal  of  which  had  not  been  contem- 
plated by  either  of  the  two  contracting  parties. 

On  still  another  side  this  question  of  the  direct  relation 
between  the  treaty-power  and  the  legislative-power  makes 
it  difficult  to  fix  the  limits  of  the  treaty-power.  It  is  cer- 
tain that  no  authority  granted  by  the  constitution  to  any 
of  the  factors  of  government  can  be  withdrawn  from  it 
by  treaty.  For  that  would  be  a  change  of  the  constitu- 
tion and,  as  such,  unconstitutional.  But  congress  may  be 
bound  by  a  treaty  not  to  exercise  in  a  certain  way  a 
power  belonging  to  it,  although  it  might  exercise  it  in  that 
way  if  not  bound  by  the  treaty.  The  freedom  of  action 
of  the  house  of  representatives  can  thus  easily  be  restricted 
by  a  treaty  to  such  a  degree  that  the  restriction  must  be 
admitted  to  be  a  violation  of  the  constitution,  even  if  not 
'strictly  of  its  letter,  yet  still  of  its  spirit.  Thus,  for  instance, 


204  CONSTITUTIONAL    LAW    OF   THE    UNITED    STxlTES. 

the  framers  of  the  constitution  certainly  did  not  wish  that 
duties  shoiikl  be  fixed  in  a  way  repugnant  to  tlie  views  of 
the  house  of  reju'esentatives,  and  yet  tin's  might  be  brought 
about  at  any  moment  by  a  commercial  treaty.  Of  course 
it  must  not  be  inferred  that  in  general  there  should  be  no 
commercial  treaties.  But  Daniel  Webster  was  certainly 
right  in  advising  his  countrymen  to  consider  carefully  be- 
fore beginning  to  handle  questions  of  duties  in  connection 
with  treaties.'  The  considerations  which  led  him  to  o-ive 
this  advice  are  of  even  more  importance  now.  The  pres- 
ident and  senate  in  concluding  commercial  treaties,  and 
indeed  treaties  of  all  kinds,  must  keep  steadily  in  mind 
the  house  of  representatives,  not  only  in  order  not  to 
excite  its  sensitiveness  and  jealousy  and  to  avoid  anycon- 

1  See  his  letter  of  November  25, 1842,  to  Everett,  in  Curtis,  Life  ofD. 
Webster,  II.,  174.  The  Nation  of  January  29, 1885,  says:  "  There  have 
been  treaties  negotiated  by  President  Arthur  and  now  before  the  sen- 
ate, that  make,  or  will  make  if  ratified,  anew  departure  in  our  diplo- 
macy. A  series  of  commercial  treaties,  that  tie  the  hands  of  the  gov- 
ernment in  the  future  levy  of  duties  on  merchandise  from  all  or  a 
large  part  of  the  states  and  colonies  on  the  south  of  us,  must  be  of 
tremendous  significance.  The  consequences  of  such  treaties  for  good 
or  for  evil  the  country  is  just  beginning  to  appreciate,  and  does  not 
yet  fully  comprehend.  Foi'tunately,  Pi'esident  Arthur  has  inserted 
in  the  Spanish  treaty,  and  presumably  in  all  the  commercial  treaties 
that  are  on  the  way,  a  stipulation  that  they  shall  not  be  exchanged 
and  proclaimed  as  binding  till  not  only  the  senate,  but  the  law-making 
power,  has  ratified  them."  As  to  the  important  results  of  this  pro- 
viso it  says  farther  on,  in  the  same  article :  "If  ratified  by  the  senate, 
those  treaties  must  then  by  the  president  be  submitted  to  congxess  as 
a  legislative  body,  and  Pi-esident  Cleveland  [a  president,  thus,  who  had 
nothing  to  do  with  the  negotiation  and  conclusion  of  the  treaties]  may 
be  called  on  to  approve  or  veto  the  doings  of  congress  thereon.  There- 
fore, the  responsibility  of  ratifying,  exchanging  and  proclaiming  the 
Spanish  treaty  may,  and  probably  will,  rest  in  the  end  on  President 
Cleveland.  He  will  probably  be  called  on  to  deal  with  the  whole  sub- 
ject de  novo." 


THE    FEDERAL   CONSTITUTION.  205 

flict  with  it,  but  also  in  order  not  to  act  in  opposition  to  the 
spirit  of  the  constitution.  It  need  but  be  suggested  that 
the  treaty-power  embraces  also  treaties  of  peace  to  make 
it  clear  at  the  first  glance  that  president  and  senate  may 
remain  fully  within  the  letter  of  their  constitutional 
authority  and  yet  be  in  conflict  with  the  fundamental 
ideas  of  the  constitution.  Nobody  will  assert  that  no 
treaty  of  peace  should  be  concluded  which  did  not  in  all 
its  parts  receive  the  approval  of  the  house  of  representa- 
tives. But  since  the  constitution  gives  congress  the  right 
to  declare  war,  a  treaty  of  peace,  which  a  considerable 
majority  of  the  house  of  representatives  condemns  in  toto 
and  with  great  emphasis,  would  seem  to  be  a  stretching 
of  the  authority  of  president  and  senate,  according  to 
the  spirit  of  the  constitution,  although  in  a  concrete  case 
they  may  not  only  be  politically  fully  justified  but  may 
also  merit  hearty  thanks. 

This  leads  to  the  last  great  question,  to  wit:  Has  the 
house  of  representatives  the  right  to  annul  a  treaty  made 
in  accordance  with  the  constitution  by  the  president  by  and 
with  the  advice  and  consent  of  the  senate,  by  refusing  its 
co-operation  when  this  is  necessary  to  carry  out  the  stip- 
ulations of  the  treaty  ? 

We  already  know  the  constitutional  provision  which 
declares  that  treaties,  like  the  constitution  itself  and  the 
federal  laws,  are  "  the  supreme  law  of  the  land."  As 
far  as  a  treaty  requires  no  legislation  in  order  to  become 
operative,  federal  and  state  judges  are  bound  in  making 
their  decisions  to  regard  it  as  valid  from  the  very  moment 
of  its  conclusion.  If,  however,  the  stipulations  are  of  this 
nature  of  a  contract,  binding  the  powers  concerned  to 
])erform  certain  acts,  then  the  contract  must  be  fulfilled 
by  the  action  of  the  legislature  (or  executive)  before  the 
special  provisions  of  the  treaty  become  binding  upon  the 


206  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

courts.^  But  tliere  can  be  no  legislation  without  the  co- 
operation of  the  house  of  representatives.  'The  other 
factors  of  government  cannot  enforce  this  co-operation. 
The  house,  therefore,  is  always  able  in  such  a  case  to 
annul  a  treaty  in  fact,  although  it  has  no  part  in  the 
power  of  making  a  treaty.  Whether  it  has  the  right  to 
do  so  has  rejjoatedly  given  rise  to  very  incisive  and  ex- 
citing debates.  These  debates  have  not  led,  however,  to 
any  certain  decision  of  the  question.  The  house  has  not 
withheld  its  co-operation:  but  it  has  also  not  dropped  its 
claim  of  the  right  to  act  entirely  in  accordance  with  its 
own  judgment,  in  cases  when  the  fulfillment  of  the  treaty 
requires  it  to  make  an  appropriation  or  do  anything  else, 
as  to  which  it  may  incontestably  decide  under  all  otlier 
circumstances  with  full  freedom. 

§  59.  The  Appointing  Power.  Since  the  constitution, 
as  has  already  been  mentioned,  imposes  upon  the  presi- 
dent the  duty  of  taking  care  that  the  laws  be  faithfull\' 
executed,  it  grants  him,  at  the  same  time,  the  greatest 
influence  in  the  selection  of  the  persons  by  wliom  these 
law^s  are  to  be  executed;  that  is,  the  federal  officers. 
The  right  is  unquestionably  a  necessary  consequence  of 
the  duty,  but  only  within  certain  limits.  In  no  state, 
and  least  of  all  in  a  republic  which  is  ]")re-eminently  a 
state  founded  on  law  and  governed  "not  by  persons  but 
by  laws,"  can  there  be  a  reasonable  ground  for  every  in- 
ferior officer's  being  dependent  for  Ids  office,  tliat  is,  for 
his  bread,  immediately  and  absolutely  u])on  the  head  of 
the  state.  On  the  other  hand  there  are  weiglity  reasons 
why  in  a  republic  the  head  of  the  state,  even  in  the  se- 
lection of  tliose  officers,  who  in  a  greater  or  less  degree 
must  be  persons  having  his  personal  confidence,  should 
not  be  free  from  all  control.     The  provisions  of  the  con- 

'  Foster  vs.  Neilson,  Peters,  II.,  253. 


THE   FEDERAL   CONSTITUTION.  207 

stitution  as  to  the  appointment  of  officials  are  drawn 
from  both  points  of  view.  Besides  diplomatic  represent- 
atives and  consuls,  only  the  members  of  the  federal  su- 
preme court  are  explicitly  designated  as  officials  to  be 
appointed  by  the  president  with  the  consent  of  the  sen- 
ate. For  the  rest,  the  general  phrase  is  used  of  "all 
other  officers  of  the  United  States  whose  appointments  are 
not  herein  otherwise  provided  for  and  which  shall  be 
established  by  law."  This  provision  is,  however,  limited 
by  the  clause  already  mentioned,  that  "  congress  may  by 
law  vest  the  appointment  of  such  inferior  officers  as  they 
think  proper  in  the  president  alone,  in  the  courts  of  law 
or  in  the  heads  of  departments."  It  is  difficult  to  under- 
stand how  the  question  as  to  whether  the  heads  of  the 
departments  themselves  should  be  regarded  as  "  inferior 
officers,"  within  the  meaning  of  this  clause,  could  have 
been  seriously  mooted.  For  the  rest,  it  is  manifestly 
entirely  within  the  discretion  of  congress  as  to  how  nar- 
rowly or  how  broadly  it  will  fix  the  limits  of  this  idea. 
If  it  regards  it  as  necessary  or  expedient  it  can,  conse- 
quently,—  save  as  to  the  diplomatic  corps  and  the  con- 
suls,—  reduce  the  power  of  the  president  over  appoint- 
ments to  a  minimum,  and  could  unquestionably  do  so  in 
such  a  manner  as  not  to  increase  the  power  of  the  heads 
of  departments  unduly.  The  legal  regulation  of  the 
question  is  not  confined  to  enumerating  the  offices  and 
granting  the  power  of  appointment  to  the  president,  the 
courts  of  law  or  the  heads  of  departments.  This  power, 
taken  in  connection  with  the  duty  of  establishing  the 
offices  by  law,  is  broad  enough  to  embrace  the  right  to 
establish  all  provisions  deemed  expedient  as  to  the  quali- 
fications required  in  appointees,  the  time  during  which 
and  the  conditions  under  which  their  incumbency  in 
office  is  to  be  ensured,  the  grounds  of  claims  to  promo- 


208  CONSTITLTIOXAL    LAW    OF    THE    UXITED    STATES. 

tions.  etc.  Til  a  word,  tlie  so-called  "civil-service  reform," 
by  which  the  federal  offices  are  to  be  divested  of  the 
character  of  ''spoils,''  with  which  party  services  are  paid, 
is  in  no  kind  of  opjiosition  to  any  part  of  the  constitntional 
law.  The  framers  of  the  constitution  cannot  jnstly  be 
held  responsible  for  the  grave  abnses  in  the  civil  service 
since  the  presidenc}'^  of  Andrew  Jackson.  The  constitution 
renders  it  possible  to  satisfy  fully  in  ever}-  respect  all  the 
requirements  of  a  modern  civilized  state  as  to  the  tenure 
of  office.'    Xor  can  they  be  reproached  with  having  made 

1  A  good  beginning  has  been  made  lierein  by  the  law  of  January 
16,  1883,  the  so-called  Pendleton  bill.  The  most  important  provisions 
of  this  very  significant  la%v  are  the  following:  The  president  is 
authorized  to  form  a  civil-service  commission  of  five  per.sons,  of 
whom  only  three  at  most  shall  belong  to  the  same  political  party ; 
two  must  be  federal  officers  of  different  departments,  residing  in 
Washington,  and  three  occupy  no  other  federal  office.  The  task  of 
the  commission  is  to  assist  the  president  in  formulating  the  regula- 
tions necessary  for  the  execution  of  this  law,  on  the  basis  of  the  fol- 
lowing principles :  The  federal  offices  which  have  already  been  or 
will  be  classified  for  this  purpose  are  to  be  filled  by  competitive  ex- 
aminations. Preference  is  to  be  given  those  applicants  who  have 
passed  the  best  examinations.  The  offices  in  the  departments  at 
Washington  are  to  be  distributed  as  far  as  practicable  in  proportion 
to  the  population  among  the  states  and  territories  and  the  District  of 
Columbia.  A  period  of  probation  must  precede  permanent  employ- 
ment. The  commission  may  order  non-competitive  examinations  in 
such  cases  as  it  sees  fit.  It  must  regulate  and  control  the  examina- 
tions. It  must  annually  report  on  everything  covered  by  this  law 
to  the  president  for  the  use  of  congress  and  may  use  the  report  to 
make  any  further  suggestions.  The  commission  is  authorized  to  ap- 
point an  examiner-in-chief,  whose  duty  it  is  inter  alia  to  see  that  the 
examining  boards  act  alike.  Tlie  commission  appoints  the  examining 
boards,  consisting  of  at  least  three  federal  officials  in  the  particular 
state  or  territory;  the  heads  of  the  departments  to  which  these 
officials  belong  must  be  consulted  in  relation  to  their  appointment ; 
the  examinations  are  to  be  held  at  least  twice  a  year.  The  heads  of 
departments  must  classify  inferior  officials  in  conformity  with  the 
intent  of  this  law ;  officials  whose  appointment  must  be  confirmed  by 


THE   FEDERAL   CONSTITUTION.  209 

the  president  too  dependent  upon  the  senate  as  to  the 
oflRces  which  he  must  fill  with  its  consent.  The  nomina- 
tion, that  is,  the  selection  of  persons  to  be  nominated,  is 
left  wholly  to  him.  The  co-operation  of  the  senate  comes 
into  play  only  upon  the  nomination  and  is  limited  to 
that.  If  it  refuse  to  confirm,  the  president  again  has  full 
and  free  choice  among  all  citizens,  and  it  has  happened 
that  he  has  repeated  his  first  nomination.  And  if  the 
senate  confirms  he  is  still  not  yet  irrevocably  bound.  The 
constitution  provides  in  another  paragraph  that  he  shall 
commission  all  the  federal  officials  (art.  II.,  sec.  3).  As 
long  as  he  has  not  done  this  the  appointment  is  not  per- 
fected, and  he  can  send  a  new  nomination  to  the  senate. 
But  the  appointee  has  a  legal  claim  to  the  office  from  the 
moment  the  commission  is  signed,  even  if  it  has  not  yet 
been  delivered  to  him.'  No  difficulties  arise  from  the 
fact  that  the  senate  does  not  remain  in  permanent  ses- 
sion. Vacancies  which  happen  during  the  senate's  recess 
are  filled  by  the  president  provisionally.^     The  commis- 

the  senate  shall  be  classified  and  subjected  to  examination  only  upon 
the  request  of  the  senate.  Four  articles  forbid  members  of  congress 
and  all  federal  officials  from  asking  in  any  way  whatever  for  money 
contributions  for  any  political  purposes  whatever  from  federal  of- 
ficials and  employees,  and  also  from  receiving  such  taxes,  and  es- 
pecially from  inducing  by  threats  or  promises  such  contributions  for 
political  purjjoses.  Tlie  prohibition  extends  to  all  in  all  places  where 
federal  officials  or  employees  have  to  perform  their  official  duties.  Vio- 
lations of  these  provisions  are  to  be  punished  by  fines  of  as  much  as 
$5,000  or  by  imprisonment  for  three  years  or  less,  or  by  both  fine  and 
imprisonment.  See  J.  M.  Comstock,  CivU  Service  in  the  United 
States,  1885. 

1  Marbury  vs.  Madison,  Cranch,  I.,  156. 

2  Tlie  unanimous  opinions  of  several  attorney-generals  claim  for  the 
president  the  right  of  filling  provisionally  any  vacancies  which  may 
(K-cur  during  the  session.  They  construe  the  word  "happen"  as 
synonymous  with  "  exist."    Certain  weighty  reasons  of  expediency 

14 


210  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

sions  he  issues  in  such  cases  expire  at  the  end  of  the  next 
session  of  the  senate  (art.  II.,  sec.  2,  §  3).^ 

§  60,  The  Powek  of  Pardon.  The  president's  power 
of  pardon  does  not  extend  nearly  as  far  as  that  of  tlie 
rulers  in  monarchical  states,  but  the  interpretation  of  the 
constitutional  provision  concerned  by  various  decisions  of 
the  United  States  supreme  court  has  made  this  power  so 
extensive  that  several  of  the  principles  set  forth  in  these 
decisions  have  been  most  energetically  attacked  by  lead- 
ing American  publicists.  The  president  is  authorized  '*  to 
grant  reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment "  (art.  II.,  sec.  2, 
§  1).  The  president  thus  has  not  simply  a  right  of  par- 
don. He  can  pardon  only  for  offenses  against  the  United 
States,  but  as  to  these  the  power  is  entirely  unlimited, 
for,  according  to  the  supreme  court,  the  word  "  pardons  " 
embraces  everything  which  at  the  time  of  the  adoption 
of  the  constitution  was  understood  thereby  in  English 
law."  He  can  remit  exery  punishment,  from  a  money- 
penalty  imposed  for  a  violation  of  the  internal-revenue 
or  customs  laws,  up  to  and  even  including  the  death  pen- 
alty. In  cases  of  forfeiture,  as  far  as  others  have  acquired 
a  legal  right  to  the  goods  forfeited,  the  pardon  naturallv 
remains  inoperative.  And  it  does  not  effect  a  reinstate- 
ment in  a  forfeited  office.  For  the  rest,  however,  a  full 
pardon  annuls  every  legal  consequence  of  a  sentence. 
Indeed  the  pardon  need  not  be  a  complete  one.  It  may 
be  coupled  with  a  condition;  and  this,  as  a  rule,  tends  to 

certainly  favor  this  interpretation,  Ijut  the  wording  does  not  in  my 
opinion  justify  it. 

1  Tlie  important  question  of  removal  from  office  lias  already  been 
treated.  It  may  be  mentioned  here  that  the  president  cannot  refuse 
the  resignation  of  an  official. 

^  Ex  parte  Wells,  Howard,  XVIII.,  309. 


THE   FEDERAL   CX)N8TITUTI0N.  211 

a  mitigation  of  punishment.^  Nevertheless,  it  is  not  nec- 
essary to  put  the  mitigation  in  the  form  of  a  condition. 
It  may  be  declared  directly  as  a  remission  of  part  of  the 
sentence.  On  the  other  hand,  a  penalty  of  an  entirely 
different  kind  from  the  one  imposed  cannot  be  inflicted."^ 
The  most  important  of  all  the  conclusions  from  the  inter- 
pretation given  the  word  "  pardons  "  is  unquestionably 
that  a  pardon  may  be  granted  before  sentence  has  been 
passed,  yea,  even  before  any  legal  procedure  whatever 
has  been  begun  against  the  accused.^  From  this  comes 
the  right  to  issue  a  general  amnesty.  The  president  is 
subject  to  no  legal  control  in  the  exercise  of  these  far- 
reaching  powers.  Any  legislative  encroachment  by  con- 
gress upon  the  pardoning  power  is  excluded.  The  only 
remedy  against  a  coarse  abuse  of  it  is  the  right  of  im- 
peachment.* 

THE  JURISDICTION  OF  THE  FEDERAL  COURTS. 

§  61.  General  Principles  and  Points  of  Yiew.  The 
experience  endured  under  the  articles  of  confederation 
had  impressed  the  more  far-sighted  patriots  with  the  con- 
viction that  a  real  federal  government  could  not  be 
created  as  long  as  the  sovereignty  of  justice  was  with- 
held from  the  Union.  It  followed  directly  from  this 
principle  that  the  jurisdiction  of  the  federal  courts  must 
be  co-extensive  with  the  sphere  of  the  federal  legislature 
and  the  federal  executive.  Political  considerations  and 
grounds  of  expediency,  however,  determined  the  fraraers 

^Ex  parte  Wells,  Howard,  XVIII.,  307.  This  is  the  leading  ques- 
tion decided  in  this  case. 

Ubid.,  305. 

^Ex  parte  Garland,  Wallace,  IV.,  300.  See  Tiffany's  (p.  836  et 
seq.)  keen  polemic  against  this  doctrine. 

<  It  may  be  noted  that  the  president  may  withdraw  and  annul  an 
undelivered  pai'don  granted  by  his  predecessor. 


212  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

of  the  constitution  to  extend  this  jurisdiction  even  be\'ond 
these  limits.  But  on  the  other  hand,  they  did  not  de- 
duce from  tliat  principle  the  conclusion  that  all  litigation, 
in  which  the  constitution,  the  federal  laws  or  the  acts  and 
omissions  of  federal  officials  came  into  consideration, 
should  be  decided  only  in  the  federal  courts.  The  con- 
stitution is  a  constituent  part  of  the  fundamental  law  of 
all  the  states  and  the  federal  laws  are  "  the  supreme  law 
of  the  land  "  and  consequently  also  of  each  several  state. 
The  federal  constitution  and  laws  must  therefore  come 
into  question  in  innumerable  litigated  cases,  which  un- 
doubtedly belong  to  the  state  tribunals  as  long  as  the 
Union  bears  the  character  of  a  composite  state,  so  far  as 
its  legal  existence  is  concerned.  It  was  absolutely  nec- 
essary to  give  jurisdiction  to  the  federal  courts  in  only 
two  cases:  first,  w^here  the  preservation  of  the  national 
authority  —  viewed  from  the  stand-point  of  duties  as  well 
as  of  rights  —  demanded  it ;  and,  second,  where  uniformity 
of  decisions  was  required.  But  in  the  second  instance  the 
existence  of  an  invincible  necessity  can,  however,  be 
recognized  only  conditionally.  The  jurisdiction  of  the 
state  courts  need  not  be  completely  excluded  on  principle, 
in  such  cases.  If  the  state  courts  are  subordinated  to  the 
federal  courts,  in  these  cases,  uniformity  of  decision  is 
sufficiently  assured.  It  is  equally  as  true,  however,  that 
no  principle  requires  that  in  all  such  cases  the  state  courts 
must  be  competent  to  decide  in  the  first  instance,  while 
there  are  weighty  grounds  of  expediency  to  the  con- 
trary. As  the  constitution  provides  nothing  on  this  point, 
the  question  must  be  regulated  by  federal  legislation,  and 
congress  need  guide  itself  in  such  legislation  only  by  con- 
siderations of  expediency.  But  as  the  constitution  is  silent 
not  only  in  such  cases,  but  in  general,  as  to  whether  and 
when  the  federal  courts  shall  have  exclusive  jurisdiction, 


THE    FEDERAL    CONSTITUTION.  213 

congress  must  always  determine  this.  This  does  not, 
however,  override  the  fact  that  the  fundamental  ideas  of 
the  constitution  imperiously  demand  in  certain  cases  the 
establishment  by  law  of  exclusive  jurisdiction,  and  in 
others,  on  the  contrary,  may  as  unconditionally  require 
the  concurrent  jurisdiction  of  the  state  courts.  Where 
this  concurrent  jurisdiction  exists  in  accordance  with  the 
federal  laws,  it  is  not,  however,  created  by  them.  Congress 
is  not  constitutionally  capable  of  transferring  even  the 
slightest  portion  of  the  legal  sovereignty  of  the  United 
States  to  the  several  states  or  of  delegating  it  to  them ;  but 
the  state  courts  have  jurisdiction  because  the  legal  sover- 
eignty indwelling  in  the  states,  before  the  adoption  of  the 
constitution,  was  not  taken  from  them  so  far  as  these 
cases  are  concerned  b}'^  the  constitution  or  by  the  federal 
laws  passed  b}'^  virtue  thereof.^  Where  the  states  have 
concurrent  jurisdiction,  their  rules  of  procedure  alwaj'^s 
prevail.  Congress  can  vest  the  execution  of  the  legal 
sovereignty  of  the  United  States  only  in  federal  courts 
and  the  authority  of  these  courts  rests  exclusively  upon 
the  constitution  and  the  federal  laws  enacted  under  it 
{American  Insurance  Co.  vs.  Canter,  Peters,  I.,  511);  they 
have  no  common  law  jurisdiction  ( Wheaton  vs.  Peters, 
Peters,  VIII.,  591,  658)."^    In  the  third  place,  where,  from 

1  Martin  vs.  Hunter's  Lessee,  Wheaton,  I.,  304.  On  the  other  hand 
the  supreme  court  in  the  noted  case  of  Prigg  vs.  Pennsylvania  (Peters, 
XVI.,  539)  laid  down  tlie  principle  that  the  states  could  not  grant  to 
their  courts  the  riglit  to  carry  out  federal  laws.  Just  as  little  can  the 
authority  of  the  federal  courts  be  extended  by  state  laws.  But  the 
federal  courts  may  decide,  when  new  rights  are  created  by  state  laws, 
whether  the  law-suits  arising  thereunder  fall  according  to  federal 
law  within  the  domain  of  the  federal  courts.  Ex  parte  McNid,  Wal- 
lace, XIII.,  243. 

2  In  general  —  the  exceptions  to  the  rule  will  be  hereafter  noted  — 
the  legal  sovereignty  of  the  United  States  thus  comes  into  play  first 
only  by  virtue  of  federal  legislation.  The  answer  to  the  question, 
how  far  the  sovereignty  of  law  extends,  can  be  found  only  in  the 


214  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

motives  not  of  principle,  but  of  expediency,  the  author- 
ity of  the  federal  courts  has  been  extended  beyond  the 
sj)hei'os  of  congress  and  of  the  president,  the  concurrent 
jurisdiction  of  the  state  courts  is  of  course  required  and 
their  subordination  to  the  federal  courts  is  not  a  matter 
of  principle.  h\  these  cases  the  jurisdiction  of  the  fed- 
eral courts  depends  upon  the  person  or  the  residence. 
Therefore  the  federal  courts  in  their  decisions  in  such 
cases  regard  as  decisive  the  local  law, —  the  common  law, 
the  law  of  custom,  the  statutory  law  and  the  constitution 
of  the  state,  and  that,  too,  as  interpreted  by  the  state 
courts,'  provided,  however,  the  judicial  decision  of  the 
question  at  issue  is  dependent  solely  upon  the  legal  status 
of  the  ))arties  in  the  particular  state.-  If  the  decisions 
of  the  highest  state  court  on  the  point  at  issue  are  in 
conflict  with  one  another,  the  federal  courts  follow  the 
last  decision.* 

In  addition  to  the  above  three  categories,  which,  if  the 
cases  be  divided  according  to  their  objects,  embrace  all 

constitution,  but  the  laws  must  determine  the  authorit}'  of  the  federal 
courts.  Congress  can  neither  decrease  nor  increase  the  legal  sov- 
ereignty fixed  by  the  constitution,  but  the  constitutional-law  powers 
rest  (they  lie  "  dormant  " )  till  it  has  directed  that—  eventually  also 
when  and  how  —  they  are  to  be  exercised  by  certain  federal  courts. 
In  many  cases,  in  which  it  could  indisputably  do  so,  it  has  not  so 
ordered,  or  at  least  has  not  done  so,  to  the  fullest  possible  extent. 
But  it  is  not  congress,  it  is  the  constitution,  which  grants  the  federal 
courts  their  powers ;  congress  provides  only  that,  when  and  how  the 
powers  created  by  the  constitutional  law  shall  be  exercised  by  the 
different  courts. 

1  Livingstones  Lessee  vs.  Morse,  Peters,  VII. ,  469 ;  Shelby  vs.  Guy. 
Wheaton.  XL,  361. 

2  The  decisions  of  the  state  courts  are  therefore  not  followed  as 
of  course,  when  they  involve  passing  judgment  upon  a  national 
power,  upon  rights,  privileges  or  exemptions  claimed  under  the 
federal  constitution,  upon  principles  of  law  universally  valid,  upon 
state  laws  which  have  the  nature  of  contracts,  etc. 

s  Chreen  vs.  NeaFs  Lessee,  Peters,  VI.,  291. 


THE   FEDERAL   CONSTITUTION.  215 

litigation  of  every  kind  in  the  federal  courts,  there  is  an- 
other triple  division  possible,  based  with  equal  clearness 
and  just  as  naturally  upon  the  particular  constitutional 
provision  concerned.  It  is  not  easy  to  find  a  perfectly 
appropriate  name  for  the  determining  principle  of  this 
second  tripartition,  but  the  basis  of  division  may  be  most 
correctly  designated  as  the  reason  of  the  suit.  And  as 
"  object "  and  "  reason  "  are  sometimes  very  difficult  to 
separate  or  distinguish,  while  they  are  yet  manifestly  not 
synonymous,  so  the  three  classes  of  each  partition  are 
also  co-extensive  in  great  part,  but  by  no  means  com- 
pletely so.  The  sovereignty  of  law  of  the  Union  is 
based  upon:  first,  the  law  to  be  applied;  second,  the  par- 
ties to  the  suit;  third,  the  thing  involved. 

§  ()2.  Law-suits  Arising  Under  the  Constitution,  the 
Federal  Laws  and  Treaties.  The  two  first  groups  co- 
incide most  closely,  for  where  the  nature  of  the  law  to 
be  applied  is  the  condition  of  the  legal  sovereignty  of 
the  Union,  this  is  always  because  the  preservation  of  the 
national  authority  demands  it.  The  constitution  pro- 
vides that  "  the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity  arising  under  this  constitution,  the  laws 
of  the  United  States  and  treaties  "  (art.  III.,  sec.  2,  §  1). 
It  has  already  been  said  that  the  word  "  cases  "  is  not 
synonymous  here  with  "  disputed  law  points."  It  must 
be  underetood  as  a  technical  term,  and  all  "  disputed  law 
points  "  which  are  of  a  political  nature  are  subject  to  de- 
cision by  the  political  powers, —  by  the  president  or  by 
congress,  or  by  congress  and  the  president.  Moreover, 
all  law  cases  in  which,  in  a  general  way,  the  constitution, 
the  federal  laws  or  treaties  come  into  question,  do  not 
*'  arise  under "  them  within  the  meaning  of  this  provis- 
ion. The  words  "  arising  under "  are  to  be  understood 
as  meanmg  that  the  correct  decision  of  the  legal  dispute 


21(3  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

must  depend  upon  the  correct  construction  and  interpre- 
tation of  the  constitution,  of  a  federal  hl^v,  or  of  a  treaty .^ 
If  the  constitution  comes  in  this  sense  into  question,  the 
points  involved  may  be  whether  or  no  a  federal  or  state 
law,  or  the  act  of  a  federal  or  state  olliccr,  is  constitu- 
tional. Congress  has  not  thought  it  necessary  to  give  ex- 
clusive jurisdiction  to  the  federal  courts  in  any  one  of 
these  cases.  In  jts  opinion,  it  has  sullicicntly  assured  the 
preservation  of  the  national  authority  and  the  uniformity 
of  judicial  decisions  by  giving  the  parties  the  power  of 
transferring  a  case  pending  before  a  state  court  to  a  fed- 
eral court.  This  can  be  done  only  on  certain  carefully 
delined  conditions."  The  federal  supreme  court  is  the 
court  of  last  resort.  Its  decision  may  be,  in  fact,  re- 
quired when  the  constitutionality  of  a  federal  law  or  of 
a  treaty  is  called  into  question,  or  where  the  action  in- 
volves a  power,  a  title,  or  a  right  of  some  kind  claimed 

1  Cohens  vs.  Virginia,  Wheatoii,  VI.,  379. 

2  In  all  cu.ses  to  which  the  legal  sovereignty  of  the  United  States 
extends,  congress  may  permit  a  removal  of  the  case  from  the  state 
to  the  federal  courts  {Railway  Company  vs.  Wliitton,  Wallace,  XIII., 
270).  This  is  not  necessarily  done  by  appeal.  A  ca-e  may  be  re- 
moved before  it  is  decided.  Even  after  a  decision,  the  removal  is  not 
always  by  apjieal  in  the  technical  sense  of  the  word.  It  is  usually 
by  writ  of  error.  On  an  appeal  questions  of  both  fact  and  law  are 
re-examined.  Under  a  writ  of  error  only  questions  of  lavv'  are  re- 
examined. As  to  what  is  more  properly  called  "  removals  of  cases," 
that  is,  removals  before  judgments,  see  details  in  Cooloy,  Principle.'^, 
122-128.  If  the  case  involves  only  money,  or  money's  worth,  the 
sum  claimed  must  be  at  least  $500  to  permit  a  i-emoval.  Federal 
officers  or  other  persons  sued  under  a  tax  or  customs  law  of  the  Union 
have  had.  since  1883,  special  legal  rights  of  removal.  The  central 
idea  of  the  whole  system  of  transferring  cases  is  always  more  or  less 
that  of  making  surer  of  an  impartial  judgmcTit.  Every  direct  or 
indirect  limitation,  by  state  law,  of  the  right  of  removal  under 
federal  laws  is  null  and  void.  J,  F.  Dillon,  Laiv  of  Removal  of 
Causes,  3d  ed.,  St.  Louis,  1881. 


THE   FEDERAL   CONSTITUTION.  217 

to  exist  under  the  constitution,  a  federal  law  or  a  treaty, 
and  the  state  supreme  court  has  decided  against  the  va- 
lidity of  the  claim.  If,  however,  the  judgment  depends 
upon  whether  or  no  a  state  law  or  a  right  claimed  under 
the  authority  of  a  state  is  opposed  to  the  federal  consti- 
tution, federal  law  or  a  treaty,  an  appeal  can  be  taken  to 
the  federal  supreme  court  only  in  case  the  supreme  court 
of  the  state  has  held  the  state  law  to  be  valid.  Asfain, 
other  cases  "arise  under"  the  federal  laws  or  treaties, 
which  question  not  their  validity,  but  the  correctness  of 
their  interpretation.  Uniformity  of  judicial  decision  re- 
quires the  federal  courts  to  take  jurisdiction  of  such 
cases,  and  congress  has  made  this  jurisdiction  in  part 
exclusive. 

Next  in  order  come  four  kinds  of  legal  controversies 
to  which,  from  the  nature  of  the  matter  at  issue,  the 
legal  supremacy  of  the  United  States  must  extend.  In 
three  of  them  the  basis  of  jurisdiction  is  the  personality 
of  the  parties.  In  the  fourth  —  cases  of  admiralty  and 
maritime  law — the  nature  of  the  law  to  be  applied  is  not 
to  be  understood  as  the  basis  of  jurisdiction  in  the  same 
sense  as  it  has  been  in  the  preceding  paragraph. 

§  63.  Embassadors,  other  Diplomatic  Agents  and  Con- 
suls. As  to  this  provision  of  the  constitution,  I  need 
observe  only  that  these  representatives  and  agents  of  for- 
eign powers  need  not  necessarily  be  "  parties  "  to  a  suit. 
The  jurisdiction  extends  "to  all  cases  affecting  "  them, — 
an  expression  vague  enough  to  leave  its  interpretation 
quite  at  the  discretion  of  the  judge. 

§  64.  Admiralty  and  Maritime  Jurisdiction.  The  ju- 
risdiction of  the  federal  courts  in  admiralty  and  maritime 
cases  IS  to  a  very  large  extent  exclusive.'     Congress  and 

1  It  is  so  in  all  cases  "  of  prize,  maritime  torts  send  contracts,  and 
liens  for  maritime  services,"  as  far  as  these  are  not  processes  in  per- 


'218  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

the  courts  have  given  this  grant  of  power  a  broad  con- 
struction. In  doing  so  they  have  relied  especially  on  the 
])hrase  ''  maritime  jurisdiction,"  in  order  to  escape  a  too 
narrow  technical  explanation  of  the  word  "  admiralty." 
The  old  opinion  that  the  power  extended  only  to  tide- 
water has  been  wholly  abandoned.  Wherever  navigation 
exists  in  the  United  States,  there  this  constitutional  pro- 
vision extends  {Jackson  vs.  The  May/iolia,  Howard,  XX., 
290,  and  The  Genesee  Chief,  Ibid.,  XII.,  4-i3).  The  grant 
of  jurisdiction  imjdies  the  existence  in  congress  of  the 
right  of  legislation  on  these  matters;  but  the  jurisdiction 
extends  only  as  far  as  congress  has  exercised  its  legisla- 
tive power  [Ibid.). 

In  all  the  subsequent  provisions,  the  word  "  cases  "  is 
replaced  by  "  controversies "  and  the  word  ''  all "  is 
dropped.  It  is  generally  admitted  that  this  change  is  not 
simply  one  of  style  but  that  it  has  a  substantial  meaning. 
So  far,  however,  there  has  been  no  precise  and  authorita- 
tive establishment  of  this  meaning.  The  doctrine  that 
the  legal  supremacy  of  the  United  States  does  not  extend 
to  "  all "  legal  controversies,  especially  those  which  barely 
come  within  the  outer  borders  of  these  provisions  of  the 
constitution,  is  of  no  practical  value,  as  long  as  nothing 
can  be  said  as  to  which  controversies  are  excluded.  The 
explanation  of  the  other  point  is  less  unsatisfactory.  It 
is  said  that  by  "  controversies  "  only  civil  proceedings 
are  to  be  understood.^ 

§  65.  Controversies  to  which  the  United  States  are 
A  Party.     The  United  States  cannot  be  sued  at  all  in  a 

sonam.  Cooley,  Principles,  114.  See  especially  the  decisions  of  the 
supreme  court  in  The  Moses  Taylor,  Wallace,  IV.,  411,  and  Hine  vs. 
Trevor,  Ibid.,  .■>.'55.  Many  American  jurists  declare  that  the  jurisdic- 
tion of  the  federal  courts  in  admiralty  and  maritime  cases  is  entirely 
exclusive;  but  they  have  only  "  suits  in  rem  "  in  view. 
1  Cohens  vs.  Viryiuia,  Wheaton,  VI.,  264,  411,  412. 


THE   FEDERAL   CONSTITUTION.  219 

state  court  {Ahleman  vs.  Booth,  Howard,  XXI.,  506). 
They  can  be  sued  before  their  own  courts  only  at  their 
own  pleasure,  that  is,  only  in  those  cases  where  the  fed- 
eral laws  permit.  Land  bought  by  the  United  States 
within  a  state  and  used  for  no  particular  purpose  is  sub- 
ject like  private  property  to  condemnation  for  public  pur- 
poses under  the  authority  of  the  state. 

§  QQ.  Controversies  Between  Two  or  More  States. 
This  provision  is  unquestionably  of  the  utmost  impor- 
tance, for  in  case  of  a  controversy  Ijetween  states,  neither 
would  be  willing  to  commit  the  decision  unconditionally 
to  a  court  of  the  other.  Just  because  a  peaceful  deter- 
mination of  such  conflicts  could  only  be  assured  by  Brak- 
ing them  subject  to  the  legal  supremacy  of  the  Union, 
the  omission  of  the  word  "  all  "  might  become  under  cer- 
tain circumstances  of  much  significance.  Since  the  abo- 
lition of  slavery  and  the  annihilation  of  the  doctrine  of 
state  sovereignty  —  in  its  old  form  —  by  the  result  of  the 
civil  war,  it  is  much  less  to  be  feared  than  formerly,  that 
a  controversy  can  ever  arise  between  the  states,  in  which 
the  jurisdiction  of  the  federal  courts  might  be  seriously 
and  energetically  disputed.  Their  jurisdiction  over  ques- 
tions of  boundary  between  the  states  has  been  established 
for  many  years  by  quite  a  number  of  decisions  of  the 
federal  supreme  court. 

The  legal  controversies  enumerated  in  the  remaining 
provisions  of  the  constitution  all  belong  to  those  placed 
under  the  jurisdiction  of  the  federal  courts  for  reasons 
of  expediency.  Moreover,  the  decisions  of  the  federal 
courts  in  these  cases  do  not  bind  the  state  courts,  which 
always  have  concurrent  jurisdiction  in  them.  The  fed- 
eral courts  as  a  rule,  as  I  have  stated,  follow  the  state 
courts  in  these  cases,  but  there  is  no  uniformity  of  legal 
decision  in  them. 


220  CONSTITUTIONAL   LAW    OF   THE    UNITED   STATES. 

§  G7.  Controversies  Between  a  State  and  Citizens 
OF  Another  State.  It  is  not  sufficient  that  a  state  be 
interested  m  a  legal  controversy;  it  must  be  a  party  to 
it.'  AcctJi'dino-  to  the  orjo-inal  and  undoubtedlv  the  cor- 
rect  interpretation  of  this  constitutional  provision  by  the 
supreme  court  {Chisholm  vs.  Georgia,  Dallas,  II.,  419), 
a  state  could  be  brought  before  the  federal  courts  not  only 
as  plaintiff  but  as  defendant.  Public  opinion  was  against 
this  and  the  eleventh  amendment  was  adopted.  This 
withdrew  from  federal  jurisdiction  suits  against  a  state 
by  citizens  of  another  state  or  by  citizens  or  subjects  of 
any  foreign  state.  This  amendment  has  led  to  serious 
complications,  for  different  states  have  repeatedly  failed  to 
comply  with  their  obligations  as  debtors.  Attempts  were 
recently  made  (1SS3)  to  bring  them  before  the  federal 
supreme  court  by  having  the  owners  of  their  defaulted 
securities  assign  the  bonds  to  their  own  states  which  were 
then  to  appear  as  plaintiffs.  The  supreme  court,  how- 
ever, has  decided  {A'^ew  Ilampshire  vs.  Louisiana  and 
Heio  York  vs.  Louisiana)  that  this  was  inadmissible,  be- 
cause it  would  be  an  evasion  of  the  eleventh  amendment. 
Whether  the  agitation  begun  to  repeal  the  amendment 
will  succeed,  remains  to  be  seen ;  but  this  can  scarcely  be 
hoped  for,  as  quite  a  number  of  the  states  are  at  present 
directly  interested  in  maintaining  it.  This  amendment 
does  not,  however,  prevent  appeals  to  the  federal  supreme 
court  if  the  decision  of  the  state  court  has  brought  into 
question  rights,  ^;itles.  etc.,  under  the  constitution,  the 
federal  laws  or  treaties  {Cohens  vs.  Virginia,  Wheaton, 
VI.,  204).  A  suit  may  be  brought  against  a  corporation 
chartered  by  a  state,  even  if  the  state  holds  all  the  stock 
{Bank  of  Kentucky  vs.   Wister,  Peters,  II.,  318), 

'  Oshorn  w.  Bunk  of  United  States,  Wheaton,  IX.,  738. 


THE  FEDERAL  CONSTITUTION.  221 

§  G8.  CoNTEovERSiES  Between  Citizens  of  Different 
States.  The  expression  "  citizen  "  is  not  to  be  understood 
here  literally.  It  means  "inhabitant."  Even  corpora- 
tions are  regarded  as  inhabitants.  Inhabitants  of  the 
territories  or  of  the  District  of  Columbia,  however,  are 
not  included.  The  jurisdiction  granted  by  this  provision 
to  the  federal  courts  has  been  by  no  means  put  in  full 
force  by  congress  in  its  legislation. 

§  69.  Controversies  Between  Citizens  of  the  Same 
State  Claiming  Lands  Under  Grants  of  Different 
States.  This  provision  also  applies  when  the  states  con- 
cerned originally  constituted  one  state. 

§  70.  Controversies  Between  a  State  or  its  Citi- 
zens AND  Foreign  States,  Citizens  or  Subjects.  For- 
eign corporations,  and  also  immigrants  who  have  declared 
their  intention  of  becoming  citizens,  are  "  foreign,"  within 
the  meaning  of  this  clause. 

PRACTICE  AND  PLEADING. 

§  71.  Rules  of  Practice  were  almost  wholly  left  to 
congress  to  determine.  But  on  one  substantial  point  the 
constitution  has  given  congress  no  discretion.  "  In  all 
cases  affecting  embassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  state  shall  be  a  party,  the 
supreme  court  shall  have  original  jurisdiction  "  (art.  III., 
sec.  2,  §  2).  These  cases  are  the  exceptions  to  the  rule, 
according  to  which  the  judicial  power  of  the  United 
States  can  come  into  operation  only  after  legislation  by 
congress.  Congress  is  authorized,  here,  as  everywhere 
else,  to  enact  the  more  definitive  provisions  of  procedure, 
but  if  it  does  not  do  so,  the  supreme  court  may  itself 
provide  the  modus  procedendi  {Florida  vs.  Georgia, 
Howard,  XVII.,  478).  It  is  uncertain  whether  or  no  the 
constitution  intended  that  this  original  jurisdiction  should 


222  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

also  have  been  exclusive.  Jurists'  opinions  differ,  and  so 
do  judicial  decisions.  The  affirmative  view  has  always 
had  the  more  support,  but  legislation  has  not  fully  come 
up  to  it.  For  while  a  suit  against  embassadors,  consuls, 
etc.,  can  be  maintained  only  in  the  supreme  court,  they 
may  bring  suits  in  other  courts  as  well.  On  the  other 
hand,  it  is  generally  admitted  that  congress  cannot  ex- 
tend the  original  jurisdiction  of  the  supreme  court.  The 
extent  of  its  jurisdiction  in  appeals  is  practically  left 
wholly  to  the  discretion  of  congress.  The  constitution 
says:  "In  all  the  other  cases  before  mentioned,  the  su- 
preme court  shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions,  and  under  such  regu- 
lations, as  the  congress  shall  make."  Congress  must 
therefore  give  original  jurisdiction  to  other  federal  courts, 
as  far  as  this  is  not  granted  in  the  first  sentence  to  the 
supreme  court.  Congress  may  also  give  them  an  appellate 
jurisdiction.  The  supreme  court  has  this  appellate  juris- 
diction only  so  far  as  it  is  expressly  granted  by  the  laws. 
The  circuit  courts,  consequently,  sit  in  some  cases  as 
courts  of  first  as  well  as  last  resort.^  A  case  in  which  a 
jury  has  rendered  a  verdict  does  not  come  withm  the 
category  of  those  in  which  the  supreme  court  may  re- 
examine a  question  of  fact  on  appeal.  The  seventh 
amendment,  to  be  hereafter  discussed,  establishes  this. 

1  Details  as  to  practice  and  pleading  in  the  different  federal  courts 
are  beyond  the  scope  of  this  work.  The  most  necessary  are  grouped 
in  Cooley,  Principles,  120  et  scq.  Among  the  comprehensive  books 
on  the  subject  are:  St.  D.  Law,  The  Jurisdiction  and  Powers  of  the 
U.  S.  Courts,  AUnny,  18o2;  G.  T.  Curtis,  Commentaries  on  the 
United  States  Courts,  Phila.,  18i)t;  A.  Conkling,  Treatise  on  the  Or- 
grmization.  Jurisdiction  and  Practice  of  the  Courts  of  the  U.  S.,  5th 
ed.,  Albany,  1870;  B.  R.  Cartis,  Jurisdiction,  Practice  and  Pecidiar 
Jurisprudence  of  the  Courts  of  the  U.  S.,  Boston,  ISSO;  E.  Desty. 
Federal  Procedure,  5th  ed.,  San  Francisco,  1881. 


THE  FEDERAL  CONSTITUTION.  223 

The  United  States  therefore  cannot  appeal  in  a  criminal 
case,  for  in  "crimes"  —  impeachments,  of  course,  ex- 
cepted —  the  decision  must  be  by  jurors  (art.  III.,  sec.  2, 
§  3).  Everything  which  is  a  crime  by  the  common  law 
or  state  laws  does  not  come  within  the  limits  of  this  para- 
graph of  the  constitution.  It  refers  only  to  those  crimes 
which  are  within  the  jurisdiction  of  the  federal  courts. 
The  conditions  precedent  of  the  exercise  of  this  jurisdic- 
tion are  that  the  act  in  question  has  been  declared  to  be 
a  crime  by  federal  law,  and  that  congress  has  conferred 
the  requisite  jurisdiction  upon  a  certain  court.'  In  the 
latter  respect,  congress  has  not  complete  freedom  of  ac- 
tion. If  the  crime  was  committed  in  a  state,  the  trial 
must  take  place  within  that  state  and  in  the  particular  fed- 
eral district."  If  the  crime  was  not  committed  in  a  place 
geographically  or  legally  within  a  state,  but  in  a  terri- 
tory, in  the  District  of  Columbia,  in  Indian  Territory,  in 
a  fort,  arsenal  or  other  place  subject  to  the  exclusive 
jurisdiction  of  the  United  States,  then  the  place  of  trial 
must  have  been  fixed  by  law. 

EXPRESS  LBIITATIONS  OF  AUTHORITY  AND  PROHIBI- 
TIONS. 

Many  of  the  provisions  belonging  under  this  head  have 
already  been  treated  elsewhere,  and  may  therefore  re- 
main unnoted  here.  So,  too,  those  provisions  which  con- 
cern the  rights  and  legal  safeguards  of  individuals  will 
be  passed  over  here,  because  they  are  to  be  treated  in  a 
special  section. 

§  72.  Bills  of  Attainder  and  Ex  Post  Facto  Laws. 
"  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed" 
(art.  I.,  sec.  9,  §  3).     It  is  not  stated  who  is  forbidden  to 

1  XJ.  S.  vs.  Coolidge,  Wheaton,  I.,  815;  U.  S.  v$.  Hudson  and  Good- 
rein,  Cranch,  YII.,  32. 

2  Sixth  amendment. 


224        c :>xsTrrrTioNAi.  law  of  the  uxited  states. 

pass  such  measures.  The  next  section  of  the  same  article, 
however,  says:  "Xo  state  shall  pass  any  bill  of  attainder 
[or]  r.v  j)osf  fado  law.*'  Hence  follows  directly  the  im- 
p  )rtant  principle  that  (as  the  courts  have  always  held)  all 
l)roliibitorv  clauses  of  the  constitution  containing  no 
words  extending  their  import  bind  only  the  federal 
powers.*  According  to  a  decision  of  the  supreme  court 
\Cummhujs  vs.  State  of  Jllssonri,  AA\allace,  lY.,  323,  324) 
the  expression  "bill  of  attainder"  is  to  be  understood 
here  in  the  broadest  sense,  so  that  it  includes  also  the  so- 
called  bills  of  pains  and  penalties.  In  other  words,  not 
onlv  can  no  death  sentence  be  imposed  by  an  act  of  the 
legislative  ])ower,  but  the  latter  cannot  take  the  general 
exercise  of  justice  in  criminal  cases  into  its  own  hands. 
In  the  United  States  a  punishable  crime  is  onl}^  one 
which  is  declared  to  be  such  by  existing  laws,  and  a  man 
accused  of  such  a  crime  can  be  made  answerable  only 
under  existing  laws  and  before  a  competent  court."  A 
correct  definition  of  the  expression  "<?a?  jx^st  faeto  laws  " 
is  not  to  be  "-ot  bv  translating  and  taking  the  Latin  in 
its  literal  sense.  The  framers  of  the  constitution  used 
the  Latin  Avords  because  they  desired  to  speak  only  of 
what  this  technical  term  means  in  English  law,  and  not 
of  all  retroactive  laws.  Indeed,  all  ex  post  facto  laws 
are  retroactive,  but  all  retroactive  laws  are  not  ex  post 

1  It  suffices  to  mention  Barron  vs.  3Iayor  of  Baltimore,  Peters, 
VII.,  24.S. 

2  In  t}ie  so-called  Test-Oath  Cases,  viz. :  Cummings  vs.  State  of  Mis- 
souri, supra,  and  Ex  parte  Garland,  Wallace,  IV.,  33.3.  the  supreme 
court  gave  such  a  wide  scope  to  this  eminently  teclinical  expression, 
that  most  jurists  will  probably  agree  with  the  minority  of  the  judges. 
Tlie  controversy  in  the  Cummings  case  was  over  certain  provisions  of 
the  Missouri  constitution  (and  in  the  Garland  case  over  certain  fed- 
eral laws)  which  made  the  capacity  of  occupying  an  office  depend 
upon  taking  a  test-oath  as  to  non-participation  in  the  rebellion.  In 
l)oth  cases  five  judges  were  arrayed  against  four. 


THE   FEDERAL   CONSTITUTION.  225 

facto.  The  latter  relate  onl}'^  to  crimes  and  misderaean- 
ors  covered  by  the  criminal  law.  Neither  congress  nor 
the  states  can  give  a  law  a  retroactive  force  in  such  a 
way  as  to  make  an  act,  already  done  and  not  punishable 
when  done,  punishable  now;  or  to  increase  the  punish- 
ment or  the  legal  grade  of  a  punishable  act ;  or  to  lessen 
the  legal  conditions  of  conviction;^  or  to  withdraw  a 
legally-vested  right  on  account  of  an  action  now  first 
made  punishable ;  -  or,  finally,  to  deny  to  a  person  accused 
of  crime  the  opportunity  of  pleading  something — for  in- 
stance, a  declaration  of  amnesty,  a  former  sentence  or  an 
acquittal  —  which  would  otherwise  assure  him  immunity.' 

§  73.  Nobility.  Both  the  United  States  and  the  states 
are  forbidden  to  grant  any  title  of  nobility  (art.  I.,  sec.  9, 
§  8,*  and  sec.  10,  §  1). 

§  Y4.  Religious  Liberty.  The  principle  of  the  separa- 
tion of  church  and  state  is  as  completely  carried  out  in 
the  United  States  as  it  can  be  in  any  nation  based  upon 
law ;  but  religious  liberty  is  not,  as  most  Europeans  be- 
lieve, guarantied  by  the  constitution. .  The  latter  contains 
only  two  clauses  as  to  religion.  It  prohibits  a  "  religious 
test  ...  as  a  qualification  to  any  oflBce  or  public 
trust  under  the  United  States"  (art.  YL,  §3).'  The 
word  "  test "  is  unquestionably  to  be  understood  in  the 

1  In  1798,  in  Calder  vs.  Bull,  Dallas,  EEL,  390,  Justice  Chase  defined 
these  four  classes. 

2  See  the  convincing  criticism  of  this  part  of  the  Test-Oath  Closes 
by  Pomeroy,  pp.  340-347. 

3  Cooley,  Principles,  286. 

<Here,  too,  belongs  the  provision  that  no  officer  of  the  United 
States  "shall,  without  the  consent  of  the  congress,  accept  of  any 
present,  emolument,  office  or  title  of  any  kind  whatever,  from  any 
king,  prince  or  foreign  state." 

s  The  federal  and  state  officers  who  must  pledge  themselves  to  sup- 
port the  constitution  are  free  to  take  a  mere  affirmation  in  lieu  of  an 

oath. 

15 


22G  COXSTITUTIOXAL    L.IW    OF   THE    UNITED    STATES. 

» 

technical  sense  which  it  possesses  in  the  ecclesiastical- 
political  history  of  England,  but  nevertheless  it  would 
be  unconstitutional  if  —  for  example  —  faith  in  God 
should  be  declared  necessary  in  order  to  become  a  federal 
officer.  The  United  States  are  not  legally  a  Christian 
state;  they  are  not  even  a  theistic  state;  but  just  as  little 
are  they  a  pagan  state.  They  are  simply  a  state.  The 
religious  convictions  of  the  people  and  the  churches  as 
communities  of  believers  do  not  exist,  so  far  as  the  United 
States  are  concerned,  i.  e.,  all  these  things  lie  without 
their  sphere  of  action. •  The  federal  government  has 
only  the  powers  granted  by  the  constitution,  and  the 
latter  mentioned  religion  only  because  it  appeared  safer  to 
express  explicitly  what  complete  silence  would  have  im- 
plied. The  second  provision  also  contains  but  a  single  pro- 
hibition. The  first  amendment  forbids  congress  to  enact 
any  law  "  respecting  an  establishment  of  religion  or  pro- 
hibiting the  free  exercise  thereof."  -     "  An  establishment 

1  The  attempt  has  been  reijeatedly  made  to  bring  into  the  constitu- 
tion in  some  form  or  other  a  recognition  of  God,  but  the  people  have 
never  taken  kindlj-  to  the  thought,  perhaps  less  because  they  are 
quite  conscious  of  the  objections  to  it  on  principle,  and  regard  them 
as  decisive,  than  because  they  consider  the  matter  simply  unneces- 
sary. 

A  treaty  concluded  with  the  Bey  of  Ti-ipoli  November  4,  1796,  says : 
"  The  government  of  the  United  States  is  not  in  any  sense  founded 
on  the  Christian  religion."     U,  S.  Statutes  at  Large,  VIII.,  155. 

2 The  Mormons,  on  account  of  this  amendment,  declare  that  tlic 
laws  against  their  polygamy  are  unconstitutional.  And  it  has 
seemed  doubtful  to  many  non-Mormons  whether  congress  was  author- 
ized to  assail  this  "remnant  of  barbarism "  with  penal  laws.  The 
rpiestion  is  certainly  not  wholly  without  difficulty,  for  it  is  well  to 
note  that  the  free  "exercise"  of  a  religion  cannot  be  prohibited. 
But  till'  demands  of  sound  common  sense  have  won  the  victory  over 
Kcruplos  of  constitutional  law.  A  state  cannot  be  in  duty  bound  to 
look  with  folded  arms  on  the  subversion  of  its  fundamental  principles 
of  morality  because  the  attack  is  cloaked  under  the  form  of  practicing 


THE   FEDEKAL   CONSTITUTION.  227 

of  religion  "  is  also  a  technical  expression  borrowed  from 
England,  but  it  must  not  be  understood  in  its  narrowest 
technical  sense.  Congress  is  not  only  prohibited  from 
making  any  religion  whatever  a  state  religion  or  any 
church  whatever  a  state  church,  but  it  cannot  make  any 
laws  favoring  one  religion  or  church  more  than  any  other. 
As  far  as  the  federal  constitution  is  concerned,  not  only 
are  all  religions  and  churches  tolerated,  but  they  have 
all  perfectly  equal  rights,  inasmuch  as  congress  has  no 
powers  whatever  in  relation  to  any  of  them  or  all  of  ' 
them.  On  the  other  hand,  neither  of  the  two  constitu- 
tional provisions  as  to  religion  imposes  any  obligation  or 
limitation  upon  the  states.  But  the  constitutions  of  the 
states  themselves,  without  exception,  contain  provisions 
substantially  the  same  as  those  of  the  federal  constitu- 
tion. This  is  not,  however,  because  the  latter  binds  them 
to  this.   Actually  and  legally  the  complete  religious  liberty 

a  religious  dogma.  But  although,  undoubtedly,  no  such  insane  and 
suicidal  obligation  can  be  deduced  from  this  constitutional  provision, 
it  must,  nevertheless,  be  admitted  that  the  limits  to  which  congress 
may  proceed,  in  its  application,  cannot  be  defined  with  absolute  cer- 
tainty. If  its  application  has  once  become  a  necessity,  only  the 
sound  sense  of  the  people  can  prevent  the  transgression  of  the  cor- 
rect line  of  demarcation  on  any  other  occasion.  In  the  United  States 
public  opinion  offers  sufficient  security,  however,  against  any  such 
transgression.  From  a  political  stand-point  it  is  a  more  important  I 
fact  that  so  far  no  effective  means  have  been  found  for  suppressing  j 
polygamy  by  legislation.  The  final  reason  why  all  penal  laws  have 
remained  substantially  ineffective  is  perhaps  the  unanimity  of  passive 
resistance  which  the  Mormons  oppose  to  them.  Neither  accusers 
nor  witnesses  can  be  found,  and  there  is  therefore  no  ojiportunity  to 
apply  the  law.  The  latest  penal  act  (that  of  March  32,  1882 ;  the  so- 
called  Edmunds  bill)  punishes  polygamy  in  the  territories  and  in 
other  places  under  the  exclusive  jurisdiction  of  congi-ess  with  a  fine 
not  exceeding  $500  and  imprisonment  for  not  more  than  five  years, 
and  also  deprives  a  polygamist  of  the  franchise  and  of  the  right  of 
occupying  any  public  office. 


22S  COXSTITL'TIOXAL    LAW    OF    THE    UXITED    STATES. 

and  separation  of  church  and  state  exist  throughout  the 
I'^nion,  but  not  as  an  effect  of  the  constitution.  The  lat- 
ter guaranties  this  only  so  far  as  the  federal  government 
is  concerned.  The  separation  of  church  and  state  is 
manifestly  not  to  be  understood  as  implying  that  the 
churches  can  do  and  not  do  what  they  please.  As  cor- 
porations, they  are  subject  like  other  corporations  to  the 
legislative  power  of  the  states,  especially  as  to  their 
])roperty.  They  are  also  subject  to  the  police  power,  and 
they  cannot  any  more  than  individuals  escape  from  the 
laws  of  the  state  prohibiting  and  punishing  violations  of 
public  morals  by  appealing  to  their  religious  convictions.^ 
§  75.  Fkeedom  of  Speech  and  of  the  Press.  The 
general  observations  in  the  last  paragraph  apply  here 
also.  Freedom  of  speech  and  of  the  press  are  guarantied 
by  the  constitution,  only  so  far  as  the  federal  government 
is  concerned ;  but  they  are  also  guarantied  by  all  the 
state  constitutions.-     It  is  to  be  observed  that  congress  is 

1  On  the  ground  that  the  Christian  rehgion  was  always  acknowl- 
edged by  the  common  law,  and  further,  that  it  is  the  prevailing  re- 
ligion of  the  United  States,  the  power  to  punish  "  blasphemies  "  has 
been  claimed.  Tlie  relations  of  church  and  state  will  be  more  fully 
discussed  in  the  chapter  on  the  public  law  of  the  several  states. 

2  The  provisions  in  point  are  collected  by  Cooley,  Constitutional 
Limitations,  414-417.  Hammond,  I.,  23,  ^  67,  says,  nevertheless,  in 
reference  to  United  States  vs.  Hall,  13  Int.  Rev.  Record,  182:   "The 

,5    tX  <^^    right  of  freedom  of  speech,  and  the  riglit  peaceably  to  assemble  and 
^  other  riglits  enumerated  in  the  first  eight  amendments  to  the  consti- 

tution, are  thereby  protected  only  against  the  legislation  of  congress 
and  not  against  the  legislation  of  the  states.  These  rights,  therefore, 
were  not  secured  to  the  people  of  the  United  States  until  the  four- 
teenth amendment  to  the  constitution,  because  till  then  they  might 
be  impaired  by  state  legislation ;  but  now  they  are  not  only  secured 
from  congressional  interference,  but  by  the  amendment,  from  state 
interference  also."  He  can  refer  here  only  to  the  clause  in  the  first 
section  of  the  fourteenth  amendment,  which  prohibits  the  states  from 
making  or  enforcing  "  any  law  which  shall  abridge  the  privileges  or 


THE   FEDERAL   CONSTITUTION.  229 

forbidden  to  "abridge"  the  freedom  of  speech  or  of  the 
press.  The}'^  were  therefore  recognized  as  existing  rights. 
Hence  it  has  been  argued  that  the  correct  interpretation 
of  the  words  must  be  found  in  the  common  law.  In  the 
opinion  of  the  most  prominent  English  jurists,  however,  the 
common-law  freedom  of  the  press  is  in  substance  merely 
freedom  from  a  censorship,  while  in  the  United  States  the 
idea  has  always  been  given  in  fact  and  in  law  a  far  wider 
range.  Cooley  defines  it  as  meaning  that  everything  can 
be  published  which  does  not  injure  public  morals  or 
private  reputation  in  a  way  punishable  according  to  the 
principles  of  the  common  law.  There  is  no  responsibility 
for  publication  only  in  those  cases  which  for  various 
reasons  are  recognized  as  "privileged."^  Even  proof  of 
the  truth  of  the  alleged  libel  does  not  always  assure  im- 
munity from  punishment.  In  civil  cases  it  is  always  suf- 
ficient; but  if  the  complaint  is  a  criminal  one,  the  motive 
of  publication  must  have  been  justifiable.  In  cases 
of  the  latter  kind,  the  jury  in  many  states  decides  not 
only  questions  of  fact  but  also  questions  of  law.  In  some 
states  this  principle  extends  to  all  actions  for  libel  and 
slander.  Juries  always  decide  the  questions  of  fact. 
That  attacks  against  the  government  ought  not  to  be  pun- 
ished as  libels  has  been  generally  recognized,  since  the 
"sedition  law,"  passed  during  the  presidency  of  John 
Adams,  was  condemned  by  public  opinion  with  great 
decision  and  bitterness  as  unconstitutional.  Even  attacks 
upon  the  form  of  the  state  cannot  be  punishable  as  long 

immunities  of  citizens  of  the  United  States."  In  my  opinion  this 
clause  cannot  be  given  so  comprehensive  an  interpretation.  Com- 
pare §  82.     See,  also,  U.  S.  vs.  Cruikshank,  93  U.  S.,  542. 

1  See  Cooley,  Constitutional  Limitations,  425,  426 ;  and  Principles, 
275  et  seq.  A  distinction  must  be  drawn  between  cases  of  conditional 
and  unconditional  privilege. 


23(1  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

as  the  cliani>-o  is  sought  in  a  constitutional  ^vay.  In  case 
of  j)lans  for  tiie  violent  subversion  of  the  government  or 
the  state,  seditious  })ubHcations  can,  however,  be  produced 
before  the  criminal  judge  as  part  of  the  res  gestoB. 

§  TO.  The  Eight  to  Assemble  and  to  Petition,  These 
rights  are  lilcewise  guarantied  in  all  the  state  constitu- 
tions. In  them,  as  well  as  in  the  federal  constitution,  the 
formei'  right  is  subject  only  to  the  condition  that  the 
people  assemble  "■  peaceably."  Public  authority  can, 
therefore,  interfere  with  a  public  meeting  under  no  cir- 
cumstances, unless  a  violation  of  law  has  become  an  ac- 
complished fact.  This  right  has  never  been  in  danger  in 
the  United  States.  The  right  of  petition,  on  the  con- 
trary, during  many  years,  occasioned  the  most  heated 
contests  in  congress.  This  aroused  much  of  the  opposi- 
tion of  the  free  states  to  the  steady,  reckless  and  domi- 
neerinii'  advance  of  the  slave-holding  interests. 

§  77.  "'  The  Right  of  the  People  to  Keep  and  Bear 
Arms  shall  not  be  infringed"  (second  amendment) ;  because 
a  well-i-egulated  militia  is  necessary  to  the  security  of  a 
free  state.  It  has  therefore  been  argued  that  the  consti- 
tutional ])rovision  refers  only  to  arms  necessary  or  suit- 
able for  the  equipment  of  militia;  although  it  must  not 
be  inferred  from  this  that  the  right  is  restricted  to  those 
citizens  who  belong  to  the  militia.  As  to  whether  or  no 
the  bearing  of  other  arms  can  be  forbidden,  judicial  de- 
cisions are  far  apart.  It  is,  how^ever,  generally  admitted 
that  the  secret  carrying  of  arms  can  be  prohibited, 
\  %  78.  Slavery  is  prohibited  throughout  the  entire  do- 
main of  the  Union  by  the  thirteenth  amendment.  So, 
too,  is  "  involuntary  servitude,"  except  as  a  punishment 
for  crime,  after  due  conviction,' 

1 1  pass  over  all  other  provisions  relating  to  slavery,  as  they  have 
now  only  an  historic  interest. 


THE    FEDERAL   CONSTITUTION.  231 

§  79.  CoNTKACTS.^    No  statc  shall  pass  any  "  law  impair- 
ing the  obligation  of  contracts  "  (art.  I.,  sec.   10,  §  1). 
This  provision,  unlike  those  in  the  first  twq_amendments,  /  Ah^  / 
relates   wholly  to  the  states.     It  does  not  follow,  how-  ' 

ever,  that  congress  may  pass  such  laws.  Here,  as  in  all 
cases,  the  principle  obtains  that  it  has  only  the  powers 
which  are  granted  it  by  the  constitution.  The  claim  of 
an  express  grant  of  power  to  pass  such  laws  can  scarcely 
be  made.  Unquestionably,  congress  can  as  little  impair 
the  obligation  of  contracts  as  a  state.  If  the  federal 
government  wishes,  however,  to  violate  any  of  its  con- 
tracts, there  will  often  be  practically  no  legal  remedy  for 
this;  for  the  right  of  suit  against  the  United  States 
exists  only  so  far  as  they  establish  it  by  law.  But  as  to 
claims  for  money  under  such  contracts,  the  right  to  sue 
is  granted.  The  court  of  claims  has  jurisdiction  of  all 
claims  founded  on  a  federal  law,  upon  an  order  of  an  ex- 
ecutive department  or  upon  a  contract,  express  or  implied, 
with  the  government  of  the  United  States,  and  also  of 
all  claims  referred  to  it  for  decision  by  either  house  of 
congress.  But  the  obligations  incurred  under  contracts 
are  not  always  of  such  a  kind  that  in  case  of  non-per- 
formance the  injured  party  can  give  his  suit  the  form  of 
a  claim  for  money,  or  that  damages  in  money  can  atone 
for  his  real  damages.  The  proceedings  under  this  consti- 
tutional provision  in  the  federal  and  state  courts  furnish  a 
mass  of  proofs  of  this.  If  these  are  studied  more  closely 
the  student  is  inclined  to  regard  it  as,  on  the  whole,  a 
matter  of  good  fortune  that  the  prohibition  is  not  ex- 
pressly extended  to  the  United  States.  If  it  had  been, 
the  labyrinth  of  judicial  decisions,  through  which  it  is 
scarcely  possible  to  thread  one's  way  now,  would  probably 
be  still  more  extensive  and  confusing.     This  apparently 

'  J.  P.  Bishop,  Contracts,  St.  Louis,  1878. 


232  CONSTITUTIONAL    LAW    OF   THE    UNJTKD    STATES. 

simple  clause,  which  was  hardh'  mentioned  in  the  debates 
over  the  adoption  of  the  constitution,  has  proved  to  be 
one  of  the  most  important,  has  given  occasion  to  as  many 
legal  controversies,  perhaps,  as  all  the  I'est  of  the  consti- 
tution put  together,  and  has  laid  the  heaviest  tasks  upon 
judicial  brains.  Becoming  complete  master  of  the  whole 
matter  involved  would  be  the  task  of  a  life-time,  and  the 
trouble  taken  would  be  ill  repaid;  for  the  decisions  vary 
in  manifold  ways,  and  cut  across  each  other  at  eveiy  im- 
aginable angle.  Indeed,  a  number  of  recent  decisions  let 
it  seem  quite  possible  that  the  very  ground  lines  of  con- 
stitutional law  on  this  question,  once  supposed  to  be  irrev- 
ocably and  lirmly  drawn,  will  by  and  by  be  twisted  into 
a  radically  different  outline.  I  must  therefore  renounce 
the  attempt  to  state,  even  in  the  most  general  way,  what 
the  actual  constitutional  law  on  this  point  is.  I  do  so 
with  the  less  hesitation  because  most  of  the  questions  in- 
volved scarcely  come  within  my  idea  of  the  public  law, 
although  they  form  an  important  part  of  constitutional 
law,  and  are  therefore,  as  a  rule,  treated  in  great  detail 
in  American  books.  I  shall  simply  note  as  briefly  as  may 
be  those  points  which  are  really  of  especial  importance 
from  the  stand-point  of  public  law. 

As  the  constitution  speaks  simply  of  contracts,  all 
kinds  of  contracts  come  under  the  provision  —  executed 
and  executory,  express  and  implied.  The  word  covers,  in 
fact,  not  only  contracts  between  private  persons,  but  also 
those  between  a  state  and  private  persons.  On  both  these 
fundamental  principles  there  is  no  difference  of  opinion. 
This  is  a  scanty  gain,  however,  for  the  impoitance  in 
public  law  of  these  principles  depends  wholly  upon  the 
definition  of  the  word  "contract."  Giving  the  word  the 
narrowest  possible  meaning  would  have  resulted  in  no 
difficulty  worth  notice.    But  the  supreme  court  has  given 


THE   FEDERAL   CONSTITUTION.  233 

the  word  a  scope  far  bej^ond  what  is  understood  by  it  in 
ordinary  speech.  It  is  generally  admitted  that  laws  are 
not  contracts ;  but  contracts  may  be  entered  into  by  the 
state  under  the  form  of  laws,  and  legislative  donations  to 
private  pereons,  which  come  under  the  head  of  "grants," 
are  contracts  within  the  meaning  of  the  constitution.' 
Upon  these  two  statements  rests  the  whole  significance  in 
public  law  of  this  clause  of  the  constitution.  Their  con- 
sequences reach  to  the  very  root  of  the  whole  body  of 
constitutional  law  and  involve  the  question  of  the  polit- 
ical character  of  the  constituent  members  of  the  Union. 
The  legislative  power  of  the  states  within  their  constitu- 
tional sphere  is  limited  by  this  interpretation  of  the  con- 
tract-clause in  a  way  which,  in  the  opinion  of  many, 
is  absolutely  incompatible  with  the  existence  of  the 
autonomy  of  the  states.  All  acts  incorporating  private 
corporations  by  general  or  special  laws  and  all  charters 
are  contracts.  In  every  such  contract  the  state  surrenders 
pro  tanto  its  legislative  Avill.-  A  legislature  binds  all 
future  legislatures  as  to  the  entire  extent  of  the  "  contract." 
The  provisions  which  are  not  in  the  proper  sense  of  the 
word  essential  to  the  accomplishment  of  the  object,  but 
serve  only  to  advance  it,  cannot  be  changed  by  the  state 
alone  any  more  than  the  essential  provisions  can  be;  for 
the  constitution  forbids  not  only  the  annulment,  but  every 
impairment  of  contracts."     The  state  retains  only  the 

1  Fletcher  vs.  Peck,  Cranch,  Yl.,  87,  137;  Providence  Bank  vs.  Bil- 
lings, Peters,  IV.,  560. 

2  Charters  of  municipal  corporations  are  not  "contracts"  {Dart- 
mouth College  vs.  Woodward,  Wheaton,  FV.,  659,  694).  Privileges 
granted  them  in  the  charter,  sucli.  for  instance,  as  a  ferry  franchise, 
can  be  again  withdrawn  by  the  legislature.  These  privileges  would 
be  inviolable  if  granted  to  a  private  corporation.  East  Hartford  vs. 
Bridge  Co.,  Howard,  X.,  510. 

3  Planters'  Bank  vs.  Sharp,  Howard,  VI.,  327.  If,  for  instance,  a 
state  in  incorporating  a  bank  has  agreed  not  to  tax  it  beyond  a  cer- 


2oi  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

|)owers  which  come  from  the  right  of  eminent  domain.^ 
The  "contract"  must  always  be  strictly  construed  in 
favor  of  the  state.  ]^o  public  obligations  are  to  be  in- 
ferred; the  courts  recognize  only  those  which  are  clearly 
expressed.  Some  of  the  state  courts  —  especially  in  Ohio 
during  the  fifties  —  made  repeated  and  energetic  efforts 
to  overthrow  the  principles  which  led  to  consequences  of 
such  enormous  practical  significance.  The  result,  how- 
ever, was  the  very  opposite  of  that  striven  for.  The 
federal  supreme  court  kept  steadily  on  for  a  long  time 
building  upon  the  foundations  already  laid,  especially  on 
those  outlined  in  the  Dartmouth  College  decision,  the 
leading  case  for  the  interpretation  of  the  contract-clause.^ 
Nevertheless,  the  states  have  found  a  way  to  break  the 
chains  which  this  put  upon  their  legislative  freedom  of 
action.  By  general  legal  provisions,  or  in  the  very  con- 
tracts concluded  by  law,  they  reserve  the  right  to  modify 
or  repeal  the  obligations  entered  into.  Against  this  the 
federal  supreme  court  has  had  nothing  to  say,  for  the 
reservation  is  a  part  of  the  contract,  and  therefore  a 
modification  or  repeal  does  not  impair  the  obligation  of 

tain  amount,  the  state  is  bound  forever.  One  legislature  can  thus 
limit  the  right  of  taxation  for  all  future  legislatures.  It  binds,  in 
fact,  the  jjeople  themselves,  for  even  a  change  in  the  constitution 
of  the  state  cannot  repeal  the  contract-obligations  entered  into  by  an 
earlier  legislature.  See  Dodge  vs.  Woolsey,  Howai-d,  XVIII. ,  331; 
MechanicH  &  Traders'  Bank  vs.  De  Bolt,  Ibid.,  380;  Same  vs.  Thomas, 
Ibid.,  384;  Skelh/ vs.  The  Jefferson  Bank,  Black,  I.,  436;  llie  Bing- 
hamton  Bridge,  Wallace,  III.,  51.  In  this  last  case  Justice  Grier, 
who  with  Cliief-justice  Chase  and  Justice  Field  dissented  from  the 
decision,  said:  "  Although  an  act  of  incoi-poration  maybe  called  a 
contract,  the  rules  of  construction  applied  to  it  are  admitted  to  be 
the  reverse  of  those  applied  to  other  contracts."     Ibid.,  82. 

1  Bridge  Co.  vs.  Di.e,  Howard,  VI.,  507.  See  Cooley,  Const.  Lim- 
itations, 523-571. 

-  Darftnonth  College  vs.  Woodward,  Wheaton,  IV.,  519-715.  De- 
cided in  1819. 


THE   FEDERAL   CONSTITUTION.  235 

the  contract.  This  has  not,  however,  laid  the  storm 
against  the  principles  of  the  Dartmouth  College  decision. 
It  has  raged  more  violently  than  before  and  with  some 
results.^  Those  principles  have  unquestionably  already 
lost  the  character  of  axiomatic  truths  which  they  had 
assumed  in  the  minds  of  most  jurists.  The  federal 
supreme  court  has  itself  begun  to  undermine  them  by  its 
reasoning  in  the  Granger  cases,^  although  Chief-justice 
Waite  does  not  directly  attack  either  the  decision  in  the 
Dartmouth  College  case  or  its  foundation.  The  more 
recent  decision  in  the  Spring  Valley  Water  Works  case 
tends  in  the  same  way.  These  two  decisions  rest  in  sub- 
stance upon  the  fundamental  principle  that  in  states  which 
reserve  the  right  of  amending  and  modifying  charters, 
stockholders  in  corporations  must  risk  their  investment 
upon  the  hope  that  future  legislatures  will  not  modify  the 
legal  conditions  under  which  the  former  legislature  invited 
the  investment.  But  there  is  no  legal  remedy  if  this  ex- 
pectation is  not  fulfilled.  If  the  rigid  following-out  of  the 
principles  of  the  Dartmouth  College  case  to  their  ultimate 
consequences  leads  to  results  of  the  highest  significance, 
politically  and  from  the  stand-point  of  public  law,  on  the 
other  hand  this  recent  principle  might  produce  economic 
and  political  results  which  make  its  unconditional  accept- 
ance impossible.  Probably,  therefore,  a  compromise  be- 
tween the  two  will  be  sought  and  finally  found, —  a 
compromise  which  will  be  in  full  accord  with  this  clause 
of  the  constitution  and  will  avoid  the  imminent  perils  of 
each  of  the  present  doctrines.  However  this  may  be,  the 
constitutional  law  as  to  the  obligation  of  contracts  made 

1  See  especially  Shirley,  The  Dartmouth  College  Causes  and  the 
Supreme  Court  of  the  United  States,  1879. 
-'  94  U.  S.,  113-187. 


236  COXSTITUTIOXAL    LAW    OF   THE    TJKITED    STATES. 

by  legislation  is  still  in  embryo,  despite  the  numberless 
judicial  decisions  upon  it.^ 

EXPRESS  OBLIGATIONS. 

§  SO.  Guaranty  of  a  Republican  Form  of  Govern- 
ment. "  The  United  States  shall  guaranty  to  every  state 
in  the  Union  a  republican  form  of  government"  (art. 
lY.,  sec.  4).  This  is  the  only  constitutional  provision 
which  lays  an  obligation  upon  the  ""  United  States  "  with- 
out saying  anything  as  to  who  shall  determine  whether  ac- 
tion of  any  kind  is  needed  for  the  fulfillment  of  the  duty 
and  what  means  shall  or  must  be  used.  Though  the 
framers  of  the  constitution  certainly  attached  great  im- 
portance to  this  clause,  they  do  not  seem  to  have  put 
these  questions  to  themselves  or  at  least  to  have  been 
thoroughly  clear  in  their  own  minds  as  to  the  possible  sig- 
nificance of  the  provision.  Manifestly  they  set  out  with 
the  thought  tliat  the  Union  would  stand  on  feet  of  clay 
if  its  constituent  members  had  not  homogeneous  political 
institutions,  and  that  therefore,  so  far  as  might  be,  every 
possibility  of  the  growth  of  monarchical  tendencies  by 
reason  of  internal  conflicts  or  external  influences  should 
be  cut  off.  The  history  of  the  Union  since  the  rebellion 
of  the  colonies  against  the  mother  country  presented 
many  reasons  for  the  fear  lest  under  certain  circum- 
stances tendencies  of  that  kind  might  be  aroused  here 
and  there,  if  a  curb  were  not  provided  in  the  constitution, 
that  is,  if  the  entire  Union  were  not  explicitly  and  uncon- 
ditionally pledged  to  use  all  its  powers  to  suppress  these 

1  The  most  concise  compilation  of  all  the  important  decisions  of 
both  federal  and  state  courts  under  this  clause  is  to  be  found  in  the 
second  edition  (1884)  of  Desty's  Constitution  of  the  United  States, 
pp.  134-186  and  304-311. 


THE    FEDERAL    CONSTITUTION.  237 

tendencies  wherever  and  however  they  might  appear. 
For  this  is  and  should  be  implied  in  this  clause.  It  not 
only  promises  the  states  that  the  Union  will  interpose 
with  all  its  might  on  their  behalf,  if  internal  or  external 
enemies  threaten  or  overthrow  their  republican  form  of 
government,  but  it  absolutely  forbids  them  to  adopt  any 
other  form  of  government  under  any  conditions,  or  for 
any  reasons  whatever.  The  United  States  give  a  pledge  to 
themselves  and  to  their  constituent  members  that  they  will 
always  remain  a  republic  and,  indeed,  a  federative  repub- 
lic. Within  the  limits  of  the  republican  idea,  the  federal 
and  state  constitutions  can  be  subjected  in  constitutional 
methods  to  every  imaginable  modification,  but  the  least 
transgression  of  these  limits  on  the  part  of  the  Union  is. 
Ipso  facto,  a  legal  dissolution  of  the  Union,  unless  done 
with  the  consent  of  every  single  state.  And  even  in  the 
hitter  case  legally  a  new  Union  will  have  taken  the  place 
of  the  old  one.  That  is  what  the  framers  of  the  consti- 
tution had  in  view,  and.  it  is  certainly  of  more  than  theoret- 
ical interest  and  importance.  Up  to  the  present  time, 
however,  its  immediate  practical  significance  has  come 
wholly  from  another  source,  which  certainly  lies  within 
it,  but  of  which  the  framers  of  the  constitution  had  either 
no  idea  at  all  or  only  an  inkling  of  an  idea. 

While  at  the  time  of  the  adoption  of  the  constitution  it 
did  not  seem  utterly  impossible  that  under  certain  cir- 
cumstances monarchical  tendencies  might  appear  in  one 
or  more  states,  still  this  was  highly  improbable.  The 
Union  in  fact  has  never  had  occasion  to  interpose  on  this 
account.  And  yet  the  provision  has  been  brought  into 
play,  through  the  prohibition  implied  in  it  against  a  state's 
assuming  any  other  than  a  republican  form  of  govern- 
ment. 

As  the  United  States  must  guarantee  the  states  a  re- 


238  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

publican  form  of  government,  the}'  must  also  be  allowed 
to  judge  whether  the  government  of  any  state  is  repub- 
lican, and  as  the  United  States  can  act  only  by  means  of 
the  federal  government,  the  latter  must  determine  this. 
The  only  question  is.  to  which  of  its  departments  the 
decisive  judgment  belongs.  The  suj^reme  court  has  an- 
swered this  question  by  saying  that  congress  must  decide, 
and  that  the  courts  and  the  president  must  recognize  its 
decision  as  binding.'  As  the  question  is  not  legal,  but 
purelv  political,  this  view  certainly  cannot  be  disputed. 
But  is  it  not  practically  quite  the  same  thing,  no  matter 
to  whom  the  decision  belongs,  for  could  there  ever  be  a 
difference  of  opinion  as  to  whether  or  no  a  form  of  gov- 
ernment is  republican?  At  first  glance  it  might  appear 
that  this  was  barely  possible.  More  closely  examined,  it 
becomes  evident  that  the  matter  is  by  no  means  always 
and  necessarily  quite  so  simple.  For  it  is  not  the  Amer- 
ican idea  that  every  form  of  non-monarchical  government 
can  be  recognized  as  republican  in  the  sense  of  this  con- 
stitutional provision.  There  has  never  been  an  authori- 
tative definition  of  the  word  "republican,"  but  neverthe- 
less attempts  have  been  made  to  stake  off,  in  a  positive  as 
well  as  a  negative  way,  the  approximate  limits  of  the 
idea.  Every  form  of  government  essentially  the  same  as 
the  governments  of  the  states  at  the  time  of  the  adop- 
tion of  the  constitution  must  be  recognized  as  republican, 
for  it  is  self-evident  that  these  were  and  remain  republi- 
can in  the  sense  of  the  constitution.  Hence  it  has  been 
argued  that  the  system  adopted  must  coincide  with  these 
orifjinal  forms,  at  least  to  the  extent  of  entrusting  the 
legislative,  executive  and  judicial  powers  to  different 
organs.-     Indeed  a  very  competent  authority  has  drawn 

'  Luther  vs.  Borden,  Howard,  VII.,  42. 
2Pasclial,  Hie  Constitution,  etc.,  243. 


THE   FEDERAL   CONSTITUTION.  239 

a  distinction  in  principle  between  the  democratic  and  re- 
publican form  of  government.^  These  assertions  open  a 
wide  field  for  discussion,  but  it  must  be  admitted  that 
oligarchies  and  aristocracies  do  not  come  within  the  con- 
stitutional provision.  No  fixed  line,  however,  can  be 
drawn  between  an  aristocracy  and  a  representative  re- 
public in  which  but  a  small  fraction  of  the  people  have 
full  political  rights.  But  no  matter  how  much  theories 
may  (liffer,  in  practice  public  opinion  is  unanimous  in 
deciding  that  even  non-monarchical  state-forms  may  also 
be  non-republican.  This  may  become  of  the  greatest 
practical  importance,  for  congress  may  get  into  such  a 
position  that  it  can,  or  even  that  it  must,  decide  a  con- 
crete case.  For  instance,  the  question  may  be  raised 
within  a  state  which  of  two  constitutions  and  which  of 
two  governments  is  the  legal  one.  While  the  principle 
is  generally  understood  that  such  a  question  should  be 
decided  by  the  state  itself,  nevertheless  the  federal  gov- 
ernment may  be  obliged  to  take  sides  with  one  or  the 
other.  And  if  it  does  so,  its  decision  is  absolutelv  final. 
In  such  cases,  however,  it  is  easily  possible  that  consider- 
ations arising  out  of  the  question  here  discussed  may  be, 
or  have  to  be,  taken  into  account.  The  accepted  inter- 
pretation of  the  word  "  republican  "  has  given  congress 
power  to  determine  not  only  whether  the  form  of  gov- 
ernment of  the  states  is  republican,  but  also  whether  the 
states  are  in  substance  republics.  The  exercise  of  this 
right,  too,  may,  under  certain  circumstances,  become  an 
imperious  duty.  The  judgment  of  history  will  certainly 
be  that  this  was  the  case  after  the  overthrow  of  the  re- 
bellion, even  although  in  my  opinion  it  will  undoubtedly 
not  exonerate  congress  from  the  charge  of  having  greatly 
abused  this  power  in  its  reconstruction  policy.  After 
1  Ckx)ley,  Principlea,  194. 


•240  COXSTITLTIONAL    LAW    OF   THE    UNITED    STATES. 

tlie  seceded  states  had  been  forced  back  into  the  Union 
l)y  the  sword  and  tlic  sword  had  destroyed  the  true  root 
of  tliereljellion  —  shivery, —  congress  coukl  not  and  should 
not  have  ])erniitted  the  rebel  states  to  become  again  full 
nienibei-s  of  the  Union  until  they  had  adopted  constitutions 
which  corresponded  in  all  respects  with  the  new  condi- 
tion of  affairs:  which  were  in  hai'mony  with  the  views  of 
the  victorious  north;  and  which  were  republican  in  sub- 
stance as  well  as  form.  But  demands  were  made  upon 
the  southern  states  which  went  far  bevond  anvthino:  re- 
cjuired  by  the  most  rigid  interpretation  of  a  republican 
form  of  government  in  the  sense  of  the  constitution.' 

'  When  the  question  was  discussed  in  the  senate  as  to  whether  the 
state  of  Louisiana,  on  the  basis  of  its  constitution  of  1864,  should  be  rec- 
ognized as  again  endowed  with  full  constitutional  and  legal  rights, 
Charles  Sumner  said,  February  24,  l<S6o,  in  reply  to  a  question  by  Hen- 
derson :  "  I  answer  at  once,  as  a  constitutional  lawyer,  that  at  the  pres- 
ent time,  under  the  words  of  the  constitution  of  the  United  States 
declaring  that  the  United  States  shall  guarantee  to  every  state  a  repub- 
lican form  of  government,  it  is  the  bounden  duty  of  the  United 
States,  by  act  of  congress,  to  guarantee  complete  freedom  to  every 
citizen,  and  immunity  from  all  oppression  and  absolute  equality  be- 
fore the  law  ( 1).  No  government  that  does  not  guarantee  these 
things  can  be  recognized  as  republican  in  form  according  to  the 
theory  of  the  constitution  of  the  United  States,  if  the  United  States 
are  called  upon  to  enforce  the  constitutional  guarantee."  (Congress. 
Globe,  2d  Sess.,  38th  Congress,  1067.)  Congress  adopted  this  view,  for 
in  the  reconstruction  act  of  March  2,  1867,  it  made  the  re-admission 
of  the  rebel  states  to  the  right  of  representation  in  congress  depend- 
ent upon,  inter  alia,  the  conditions  that  their  new  constitutions 
should  be  "  framed  by  a  convention  of  delegates  elected  b}^  the  male 
citizens  of  sai<l  state,  twenty-one  yeai-s  old  and  ui)ward,  of  whatever 
race,  color,  or  previous  condition,"  and  that  "such  constitution  shall 
provide  that  the  elective  franchise  shall  be  enjoyed  by  all  such  per- 
sons as  have  the  qualifications  herein  stated  for  electors  of  dele- 
gates." {Stat,  at  Large,  XIV.,  429.)  Wherever  congress  could  do 
so,  it  interpreted  this  constitutional  provision  in  the  sense  given  it  by 
Sumner.     The  act  of  February  9,  1867,  for  the  admission  of  Nebraska 


THE   FEDERAL   CONSTITUTION.  24:1 

Tt  became  evident  during  the  reconstruction  period  that 
this  clause  of  the  constitution  was  a  weapon  of  terrible 
weight  and  keenest  edge.  That  the  weapon  was  not  al- 
ways rightly  used  at  a  time  when  the  country  was  con- 
fronted, constitutionally  and  practically,  with  an  amazing 
labyrinth  of  extraordinary  difficulties,  is  certainly  no 
proof  that  the  constitution  was  wrong  in  creating  the 
weapon.  Whether  it  will  ever  be  used  again  to  such  an 
extent  it  is  impossible  to  say  definitely ;  but  this  is  cer- 
tainly improbable.  An  attempt  against  the  republican 
form  of  a  state  has  never  yet  been  made,  and  it  is  almost 
inconceivable  that  such  an  attempt  ever  will  be ;  for  at 
the  present  time  in  each  state  the  form  and  substance  of 
the  government  are  in  harmony,  and  moreover  all  the 
state  governments  are  becommg  more  and  more  alike  in 
both  form  and  substance.  The  civil  war  not  only  hast- 
ened the  political  consolidation  of  the  Union  in  law  and 
in  fact,  but  also  greatly  promoted  the  nationalization  of 
the  people  by  making  all  the  constituent  parts  of  the 
Union,  from  ocean  to  ocean  and  from  the  great  lakes 
to  the  Gulf  of  Mexico,  actually  and  legally  so  homo- 
geneous in  their  political  and  social  structure  that  further 

provided:  "  That  this  shall  not  take  effect  except  upon  the  funda- 
mental condition  that  within  the  state  of  Nebraska  there  shall  be  no 
denial  of  the  elective  franchise  or  of  any  other  right  to  any  person 
by  reason  of  race  or  color,  except  Indians  not  taxed,"  and  that 
the  legislature  should  by  a  solemn  public  act  adopt  this  condition. 
(Ibid.,  XIV.,  393.)  The  fifteenth  amendment  as  originally  proposed 
shows  that  congress  sought  to  make  this  new  and  radical  interpreta- 
tion of  the  expression  obligatory  upon  all  the  states,  but  it  was  not 
possible  to  force  it  ux)on  the  loyal  states  as  a  federal  law.  This,  how- 
ever, does  not  alter  the  fact,  that  for  part  of  the  states  this  clause 
was  construed  in  a  way  which  the  rest  of  the  states  would  not  per- 
mit in  respect  to  themselves, —  in  other  words,  the  fundajnental  prin- 
ciple of  constitutional  law,  the  absolute  equality  of  all  the  states, 
was  overthrown  in  a  matter  of  cardinal  importance  by  federal  laws. 
16 


242  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

development  must  go  steadily  on  in  the  same  direction 
until  that  degree  of  homogeneity  is  reached  which,  under 
the  existing  relations,  is  generally  possible,  justifiable 
and  desirable.  With  the  increasing  density  of  the  popu- 
lation and  the  growth  of  commerce  the  importance  of 
this  provision  of  the  constitution  diminishes  from  year  to 
year  in  both  w^ays,  that  is,  so  far  as  the  duty  it  imposes 
upon  the  United  States  is  concerned  as  well  as  in  regard 
to  the  powers  it  grants  congress.  The  guaranty  offered 
bv  the  actual  condition  of  affairs  is  becomino^  so  strong 
that  each  day  there  is  less  need  of  an  express  guaranty 
in  the  federal  constitution. 

§  81.  State  Comity.  A  study  of  details  would  show 
that  the  public  laws  of  the  individual  states  still  present  a 
variegated  picture.  Probably  this  will  always  be  so. 
And  though  the  differences  are  by  no  means  all  insignifi- 
cant, none  of  them  are  of  such  a  radical  nature  that  an 
American,  Avho  moves  from  one  state  into  another,  cannot 
at  once  feel  fully  and  entirely  at  home  in  this  respect. 
On  the  other  hand  nothing  makes  him  more  conscious 
at  every  step  that  he  lives,  not  in  a  national  state,  but  in 
a  federative  republic,  than  the  myriad  legal  relations  of 
the  individual  in  the  different  states.  Even  these,  how- 
ever, are  unmistakably  alike  in  type,  and  all  the  essential 
legal  principles  as  well  as  legal  institutions  are  common 
to  all  the  states.  But  when  the  law  relating  to  individu- 
als is  applied,  the  decision  does  not  depend,  in  the  great 
majority  of  cases,  directly  upon  general  legal  principles, 
but  rather  on  how  these  principles  are  stated  in  the 
specific  provisions  of  the  state  laws.  As  a  matter  of 
course,  although  the  relations  between  the  citizens  of  the 
different  states  are  so  many-sided  and  so  close,  the  state 
laws  differ  very  much  more  than  they  would,  if  the  Union 
Tvere  a  single  national  state.     So  far  as  these  relations  are 


THE    FEDERAL   CONSTITUTION.  243 

legal  in  their  nature,  however,  they  are  regulated  by  the 
general  principles  and  rules  of  international  law  as  to  in- 
dividuals, unless,  indeed,  the  federal  constitution  provides 
otherwise.  It  does  so  provide  in  some  important  respects, 
but  by  no  means  sufficiently  so  to  make  the  legal  relations 
correspond  with  the  actual  facts  as  far  as  might  be  de- 
sirable.* The  nationalization  of  the  Union  in  this  respect 
is  never  to  be  expected.  Even  if  it  were  possible,  there 
are  very  many  and  very  important  objections  to  it.  The 
immense  extent  of  the  territory,  the  great  diversity  of 
natural  relations  and  the  consequent  diversity  of  customs 
and  opinions,  as  well  as  of  social  and  economic  conditions, 
would  count  against  it.  But,  nevertheless,  many  and 
great  disadvantages  result  from  the  fact  that  every  state 
has  its  own  laws.  And  in  certain  directions  these  disad- 
vantages will  increase  and  become  more  serious,  the  more 
in  all  other  respects  actual  nationalization  progresses.^ 
It  is  so  much  the  more  important  and  praiseworthy  that 
the  federal  constitution  has  given  parts  of  the  legal  system 
a  national  character  or  at  least  has  deprived  them  of  the 
purely  international  character  which  other  parts  bear. 

The  next  clause  to  be  considered  provides  that  •'  full 
faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records  and  judicial  proceedings  of  every  other 
state,"  and  authorizes  congress  "  by  general  laws "  to 
"  prescribe  the  manner  in  which  such  acts,  records  and 
proceedings  shall  be  proved,  and  the  effect  thereof  "  (art. 
IV.,  sec.  1).     The  manner  of  proof  is  purely  formal  and 

1  This  comes  most  dearly  to  light  in  New  York  city,  where  the 
cities  and  towns  on  the  right  bank  of  the  Hudson,  in  the  state  of  New 
Jersey,  are  economically  and  socially  simply  parts  or  suburbs  of  New 
York. 

2  For  example,  much  has  recently  been  said  as  to  what  a  great  bless- 
ing a  national  divorce  law  would  be. 


244  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

of  no  interest  here.  The  only  question  of  importance  is 
the  meaning  of  '*  full  faith  and  credit,"  that  is,  what  act- 
ual effect  the  proceedings  in  one  state  shall  have  in  an- 
other. This  question  has  always  been  answered  in  one 
way.  The  constitution,  it  is  said,  never  contemplated 
ordering  or  permitting  the  jurisdiction  of  one  state  to 
extend  into  the  domain  of  other  states;  it  intended  only 
that  every  state  should  be  in  duty  bound  to  recognize 
without  reservation  what  other  states  have  done  in  the 
exercise  of  their  lawful  jurisdiction.  A  judicial  decision 
rendered  in  another  state  will  not,  for  example,  be  en- 
forced if  the  defendant  can  prove  that  the  court  had  no 
jurisdiction,^  but  the  correctness  of  the  judgment  i^er  se 
cannot  be  called  into  question.  If  the  defendant  has  no 
further  defense  under  the  laws  of  the  state  in  which  the 
judgment  was  rendered,  it  must  be  enforced  in  every 
other  state.  If,  however,  the  laws  of  the  former  state 
vouchsafe  him  any  kind  of  protection  whatever  against 
the  judgment,  he  may  avail  himself  of  this  protection  in 
every  other  state,  but  of  this  protection  alone.  If,  how- 
ever, the  judgment  is  barred  by  lapse  of  time  under  the 
laws  of  the  state  where  it  is  sought  to  be  enforced,  the 
defendant  may  claim  the  benefit  of  these  laws,  but  no 
state  can  pass  a  statute  of  limitation  which  makes  it  im- 
possible to  enforce  judgments  rendered  in  other  states. 
The  judicial  proceedings  of  which  the  constitution  speaks 
in  this  clause  sre  only  civil  cases.  In  criminal  cases  an- 
other provision  prevails. 

1  This  is  also  true  when  the  necessary  formalities,  such  as  due  serv- 
ice of  process,  were  not  observed,  provided  the  judgment  is  in  per- 
sonam. Service  by  publication  is  sufficient,  however,  to  waiTant 
a  judgment  in  rem  if  the  property  concerned  is  within  the  jurisdic- 
tion of  the  court.  On  the  other  hand,  no  one  is  bound  to  pay  any 
attention  to  a  personal  summons  served  in  one  state  directing  him  to 
appear  before  a  court  in  another  state. 


THE   FEDERAL   CONSTITUTION.  245 

§  82.  Extradition  of  Fugitive  Criminals.  "  A  person 
charged  in  any  state  with  treason,  felony  or  other  crime, 
who  shall  flee  from  justice  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the 
state  having  jurisdiction  of  the  crime"  (art.  IV.,  sec.  2, 
§  2).  The  duty  of  extradition  is  absolute.  If  a  requisi- 
tion is  made,  it  must  be  obeyed,  provided  the  three  follow- 
ing conditions  are  fulfilled :  1.  The  demand  must  be  in 
the  required  form;  2,  the  charge  must  have  been  made 
in  the  manner  prescribed  by  law  before  a  court  of  com- 
petent jurisdiction;  3,  the  defendant  must  have  saved 
himself  from  criminal  prosecution  by  flight,  that  is,  he 
must  have  departed  from  the  state  requiring  his  extradi- 
tion. He  must,  therefore,  have  actually  been  in  that 
state.  If  the  crime  were  carried  on  from  another  state, 
as  in  the  case  of  a  conspiracy,  the  constitutional  provision 
does  not  apply.  The  executive  department  of  the  state 
to  which  the  requisition  is  directed  cannot  refuse  extra- 
dition on  the  ground  that  the  act  with  which  the  defend- 
ant is  charged  is  not  a  crime,  according  to  the  laws  of 
that  state,  but  only  a  misdemeanor  or  even  not  an  act 
punishable  at  all.  A  crime  in  the  sense  of  this  constitu- 
tional provision  is  whatever  the  laws  of  the  state  which 
makes  a  demand  for  extradition  declare  to  be  a  crirae.^ 
This  important  doctrine  of  the  supreme  court  of  the 
United  States  has,  however,  been  by  no  means  uncondi- 
tionally recognized  in  practice.  Extradition  has  often 
been  refused.  This  has  led  to  wearisome  and  serious 
conflicts  between  states.  The  most  violent  and  most 
threatening  of  these  were  caused  by  the  slavery  question. 
Certain  acts,  such,  for  example,  as  inducing  slaves  to  run 
away,  which  were  high  crimes  under  the  codes  of  slave 

i  Kentucky  V8.  Dennison,  Howard,  XXIV.,  99. 


2-iG  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

states,  seemed  to  the  more  earnest  opponents  of  slavery 
in  the  free  states  to  deserve  reward  rather  than  punish- 
ment. Different  governors,  sucli  as  AV.  IT.  Seward,  of 
Xew  York,  afterwards  senator  and  secretary  of  state,  re- 
fused to  obey  a  requisition  in  such  a  case,  because  they 
could  not  consider  as  crimes  in  the  sense  of  the  constitu- 
tion what  their  laws  and  the  moral  judgment  of  almost 
the  whole  civilized  world  did  not  consider  a  crime.  In 
these  peculiar  cases,  it  may  be  readily  admitted  that  the 
refusal  was  morally  and  jwlitically  justilied;  but  the  re- 
jection of  the  doctrine  laid  down  by  the  federal  supreme 
court  might  have  been  fraught  with  the  most  serious  re- 
sults. IS'ow  that  all  the  states  in  all  matters  profess  the 
same  moral  principles,  no  considerations  of  principle 
oppose  the  unconditional  recognition  of  this  doctrine,  al- 
though in  one  or  another  case  the  question  may  be  raised 
as  to  whether  the  law  of  the  case  is  also  the  justice  of  it. 
But  if  a  governor  sees  fit  in  his  official  conduct  to  deter- 
mine this  question  subjectively  against  the  demand,  the 
state  issuing  the  requisition  has  only  the  choice  of  submit- 
ting to  the  unconstitutional  refusal  under  protest  or  of 
repaying  like  with  like,  and  in  its  turn  retaliating  in  kind 
and  so  committing  the  same  unconstitutional  act  itself. 
For  the  supreme  court  has  declared  that  it  cannot  compel 
the  ])erformance  of  the  extradition  duty.'  This  constitu- 
tional provision,  certainly  one  of  the  most  important, — 
an  indispensable  one,  in  fact. —  cannot  be  quite  sufficient, 
or  else  the  act  of  February  12,  1793,  which  provides  the 
means  of  executing  it,  must  have  omissions  that  should 
be  supplied.^ 

i  Kentucky  vs.  Dennison,  Howard,  XXIV.,  107,  108. 

-'  The  next  clause  in  the  ccjiistitution  treats  of  the  duty  of  delivering 
up  ])ersons  held  to  service  or  lalj<jr  in  any  state.  In  order  not  to 
use  the  objectionable  word  slaves,  in  the  constitution,  its  framers 


THE    FEDERAL   CONSTITUTION.  247 

§  83.  Legal  Equality.  "  The  citizens  of  each  state  shall 
be  entitled  to  all  the  privileges  and  immunities  of  citizens 
in  the  several  states"  (art.  IV.,  sec.  2,  §  1).^  The  great 
importance  of  this  provision  is  evident  at  a  glance.  To  it 
is  chiefly  due  the  fact  that  step  by  step  with  the  pro- 
gressive development  of  the  United  States  the  practical 
nationalization  of  the  people  proceeds.  As  far  as  the 
constitution  does  not  expressly  prescribe  otherwise,  the 
states  have  a  perfect  autonomy  in  all  matters  not  made 
federal  affairs  by  the  federal  constitution,  but  they  can- 
not have  two  kinds  of  laws  and  two  kinds  of  rights,  one 
for  their  own  citizens  and  one  for  the  citizens  of  other 
states.'^  He  who  is  a  citizen  anywhere  in  the  Union  can 
nowhere  within  its  domain  be  an  alien.  If  he  crosses  the 
boundary  into  another  state  he  enters  its  legal  jurisdic- 
tion as  the  possessor  of  equal  rights  with  its  own  citizens. 
He  is  not  simply  tolerated;  his  rights  are  not  given  him 
as  a  favor;  he  has  not  to  be  contented  Avith  this  or  that 
being  assured  him ;  but  wherever  he  sets  foot  he  is  ipso 
facto  and  ipso  jure  in  the  full  enjoyment  of  all  the  privi- 
leges and  immunities  of  citizenship.  What  are  these 
privileges  and  immunities  which  belong  to  "  citizens  in 
the  several  states"  as  such?  And  does  this  mean  all 
kinds  of  citizens  or  only  a  particular  kind  ?  Judicial  de- 
availed  themselves  of  this  circumlocution.  In  adopting  this  provis- 
ion, indeed,  they  did  not  consider  slaves  exclusively,  but  apprentices 
as  well.  It  obtained  its  historic  significance,  however,  solely  through 
slavery,  and  with  the  abolition  of  that  it  became  purposeless. 

1  The  corresponding  provision  of  the  articles  of  confederation  ex- 
pressly excepts  "  paupers,  vagabonds  and  fugitives  from  justice." 

2  "  Its  sole  purpose  was  to  declare  to  the  several  states  that  what- 
ever those  rights,  as  you  grant  or  establish  them  to  your  own  citizens, 
or  as  you  Urait  and  qualify  or  impose  restrictions  on  their  exercise, 
the  same,  neither  more  nor  less,  shall  be  the  measure  of  the  rights  of 
citizens  of  other  states  within  your  jurisdiction."  The  Slaughter 
House  Cases,  WaUace,  XVI.,  77. 


248  CONSTITUTIONAL    LAW    OF   THE    UNITED    STATES. 

cisions  have  asserted  that  the  constitution  means  only 
citizens  of  the  United  States,  and  that  the  provision  there- 
fore has  no  application  to  non-naturalized  immigrants  to 
whom  one  state  has  granted  its  special  state  citizenship/ 
or  to  free  colored  people,  because  the  latter  could  never 
be  citizens  of  the  United  States.'-  The  fourteenth  amend- 
ment not  only  permanently  set  aside  the  latter  doctrine, 
but  also  did  away  with  the  chief  difficulties  arising  from 
the  very  obscure  relation  between  the  two  kinds  of  citi- 
zenship, state  and  national.  The  only  possible  doubt  now 
is  in  regard  to  non-naturalized  citizens,-'  for  "  all  persons 
born  or  naturalized  in  the  United  States  and  subject  to 
the  jurisdiction  thereof*  are  citizens  of  the  United  States 
and  of  the  state  wherein  they  reside." 

The  special  right  of  state  citizenship  is  not  granted  cit- 
izens of  the  United  States  who  immigrate.  Tiiey  acquire 
it  eo  ijyso  hy  their  settlement  in  a  state,  and  their  settle- 
ment cannot  be  prevented.  On  the  other  hand,  they  lose 
their  special  state-citizenship  by  emigrating  into  another 
state  or  territory.  The  free  right  of  emigration  is  not 
only  as  a  matter  of  fact  absolutely  unlimited  in  the 
United  States,  but  it  is  unquestionably  one  of  the  privi- 

1  Davis  vs.  Pierse,  7  Minn.,  13,  quoted  by  Bump,  290. 

2  Dred  Scott  vs.  Sanford,  Howard,  XIV.,  393. 

3 1  cannot  understand  how  Cooley  {Principles,  244)  can  say:  "  It  is 
impossible  to  conceive  of  such  a  status  as  citizenship  of  a  state  uncon- 
nected with  citizensliip  of  the  United  States."  Even  the  fourteenth 
amendment  has  evidently  in  no  way  deprived  the  states  of  the  right 
of  granting  their  particular  citizenship  wholly  in  their  own  discretion. 
It  simply  restates  what  was  already  a  recognized  principle  (Pierre  Oas- 
sies  vs.  Jean  Gassies  Ballou,  Peters,  VI.,  761 ;  1832),  that  no  state  can 
withhold  its  citizenship  from  citizens  of  the  United  States,  and  that 
the  latter  obtain  this  state-citizenship  by  the  mere  fact  of  domicile. 

^  This  clause  excludes  Indians  who  live  under  the  tribal  system,  for 
even  if  the  tribe  be  within  a  state,  the  jurisdiction  of  the  United 
States  is  only  a  limited  and  conditional  one. 


THE    FEDERAL   CONSTITUTION.  249 

leges  which  the  fourth  article  of  the  constitution  guaran- 
ties all  citizens.  The  state-citizenship  of  the  citizen  of 
the  United  States  goes  with  him  as  long  as  he  merely 
changes  his  residence,  but  retains  his  domicile.  This 
makes  it  possible  to  determine  what  kinds  of  rights  are 
not  intended  by  the  "  privileges  and  immunities"  spoken 
of  in  article  four,  and  this  again  makes  it  easier  to  an- 
swer the  question  as  to  what  kind  of  rights  are  meant 
thereby.  Political  rights,  such  as  the  franchise,  the  right 
to  hold  office,  etc.,  are  never  an  unconditional  result  of 
citizenship.  This  is  evident  from  the  fact  that  they  are 
always  withheld  from  minors,  and  almost  without  excep- 
tion from  women.  The  fourth  article  speaks  only  of  priv- 
ileges and  immunities  which  are  conditioned  upon  the 
right  of  citizenship.  Political  rights  are  consequently 
excluded.  These  are  always  and  in  all  places  inseparably 
bound  up  with  the  legal  domicile.  All  rights  appertain- 
ing to  any  citizens  of  the  state  are  not  guarantied  to 
the  citizens  of  all  the  states,  but  only  those  rights  which 
the  citizens  of  the  particular  state  have  under  the  same 
circumstances.  The  legislation  of  a  state  can  make  no 
distinction  in  favor  of  its  citizens,  but  it  goes  without 
saying  that  the  constitution  did  not  intend  to  bind  a  state 
to  give  special  privileges  to  the  citizens  of  other  states. 
And  this  would  be  the  case  if  these  latter  could  claim 
political  rights.  The  law  has  never  defined  what  kind  of 
privileges  and  immunities  belong  to  the  citizens  of  the 
several  states  as  such.  Even  the  judicial  decisions  do  not 
answer  this  question  exhaustively.  Justice  Washington 
sought  to  enumerate  them,'  and  lays  special  stress  upon 
protection  by  the  government ;  the  enjoyment  of  life  and 

^Corfidd  vs.  Coryell,  4  Wash.  C.  C,  380,  381.  He  takes  as  his 
predicate  that  only  privileges  and  immunities  are  intended  which 
must  be  regarded  as  "  fundamental." 


'250  COXSTITCTIONAL    LAW    OF    THE    UNITED    STATES. 

liberty,  with  the  right  to  acquire  and  possess  property  of 
every  kind,  and  to  pursue  and  obtain  happiness  and 
safet}-,  subject,  nevertheless,  to  such  restraints  as  the 
government  may  justly  prescribe  for  the  general  good  of 
the  Avhole;  the  right  of  a  citizen  of  one  state  to  pass 
through  or  to  reside  in  any  other  state  for  purposes  of 
trade,  agriculture,  professional  pursuits,  or  otherwise;  to 
claim  the  benefit  of  the  writ  of  haheas  corpus:',  to  insti- 
tute and  maintain  actions  of  any  kind  in  the  courts  of  the 
state:  to  take,  hold  and  dispose  of  property,  either  real 
or  personal;  an  exemption  from  higher  taxes  or  imposi- 
tions than  are  paid  by  the  other  citizens  of  the  state;  the 
exercise  of  the  elective  franchise  as  regulated  and  estab- 
lished bv  the  laws  or  constitution  of  the  state  in  which  it 
is  to  be  exercised.  It  has  never  been  disputed  that  all 
this  falls  within  the  limits  of  article  four.  In  both  legisla- 
tures and  courts,  however,  the  opinion  of  Judge  Curtis 
has  always  prevailed.^  He  held  that  it  was  not  possible 
to  establish  ]iertinently  and  exhaustively  a  priori  what 
an  immunity  or  a  privilege  in  the  sense  of  this  clause 
really  was,  and  that  it  was  therefore  safer  to  decide  the 
question  as  presented  in  each  case.  This  is  of  course  true, 
too,  of  ••  the  privileges  or  immunities  of  citizens  of  the 
United  States,"'  which,  according  to  the  fourteenth  amend- 
ment, no  state  can  abridge  by  law.  Cooley  {Principles, 
247)  expresses  the  indisputable  view  that  the  adoption  of 
this  provision  is  to  be  regarded  as  superfluous,  inasmuch 
as  the  states  manifestly  had  not  the  right  to  do  this  be- 
fore. From  the  adoption  of  the  provision  it  is  evident, 
however,  that  the  privileges  and  immunities  of  citizens  of 
tiie  United  States  and  of  the  states  do  not  correspond 
entirely,  even  if  they  coincide  in  part.  The  former  must 
unquestionaljly  be  detluced  from  the  federal  constitution. 
1  Conner  vs.  Elliot,  Howard,  XVIII.,  593. 


THE  FEDERAL  CONSTITUTION".  251 

The  federal  supreme  court  cite  some  examples  of  them 
in  the  Slaughter  House  cases.^  It  declares  that  as  far  as 
the  jurisdiction  of  the  federal  government  extends,  such 
privileges  and  immunities  also  exist.^  In  the  same  case  it 
decided,  however,  that  so  far  as  the  privileges  and  immuni- 
ties of  the  citizens  of  states  were  concerned,  their  "  safety 
and  protection "  are  incumbent  on  the  states,  and  were 
not  put,  by  the  fourteenth  amendment,  under  the  "  special 
care  "  of  the  federal  government. 

RIGHTS  OF  INDIVIDUAI^  AND  THEIR  SAFEGUARDS. 

§  84.  Due  Process  of  Law  and  Equal  Legal  Protec- 
tion. "  No  person  shall  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law  "  (fifth  amendment). 
The  fourth,  fifth,  sixth,  seventh  and  eighth  amendments 
are,  in  a  certain  sense,  only  a  more  detailed  statement 
and  explanation  of  this  principle,  which  the  fourteenth 
amendment  has  also  made  obligatory  on  the  states,  and 
has  enlarged  for  them,  so  that  they  cannot  refuse  to  any 
person  under  their  jurisdiction  the  equal  protection  of 
their  laws.  It  must  not  be  concluded  from  the  fact  that 
the  latter  provision  was  not  also  made  expressly  obliga- 
tory on  the  federal  government  that  it  can  at  pleasure 
and  constitutionally  violate  this  principle.  So,  too,  the 
adoption  of  the  first  clause  of  the  fourteenth  amendment 
must  not  be  interpreted  as  meaning  that  the  principle 
contained  in  it  first  became  binding  upon  the  states,  or 
upon  a  part  of  the  states,  when  this  amendment  went 
into  force.     Except  in  the  case  of  the  slaves,  and  in  part 

1  Wallace,  XVI.,  79,  80.  For  fui-ther  examples  see  Cooley,  Princi- 
ples, 245-247. 

2  "  We  venture  to  suggest  some  which  owe  their  existence  to  the 
federal  government,  its  national  character,  its  constitution  or  its 
laws." 


'Jo2        consthttional  law  of  the  united  states. 

also  of  the  free  colored  people,  it  \vas  always  a  funda- 
mental principle  of  the  constitution  of  every  single  state. 
But  as  it  was  deemed  necessary  to  take  care  lest,  in  the 
former  slave  states,  the  colored  people  should  be  exposed 
to  all  kinds  of  oppression  and  wrong,  it  was  also  thought 
necessar}'  to  guarantee  them  safety  under  the  law,  and 
also  ecpiality  under  the  law,  through  the  constitution  of 
the  United  States.  But  although  this  is  the  real  cause 
of  the  origin  of  this  part  of  the  fourteenth  amendment, 
yet  the  two  chiuses  are  by  no  means  of  significance  only 
for  the  colored  ])eople  of  the  former  slave  states.  Some 
of  the  most  important  law-suits  in  which  these  clauses 
have  been  involved  have  been  fought  out  in  the  northern 
states,  and  principles  of  public  law  of  the  broadest  kind, 
but  with  no  relation  whatever  to  the  race-question,  have 
been  involved  in  them.  However  unnecessary  it  may 
seem  at  first  glance,  both  clauses  need,  therefore,  a  some- 
what more  detailed  discussion. 

It  is  generally  admitted  that  the  words  "  due  process 
of  law  "  are  to  be  understood  as  a  technical  expression 
and  as  equivalent  to  the  "  law  of  the  land  "  of  magna 
charta.  It  is  therefore  said  that  this  provision  imposes  a 
limitation  not  only  on  the  courts  and  the  executive,  but 
also  on  the  legislative  power,'  because  at  the  foundation 
of  the  law  of  the  land  are  certain  principles;  the  due 
process  of  law  is  forsaken  whenever  these  princi])les  are 
violated ;  and  the  fact  that  the  violation  occurs  under  the 
form  of  a  legislative  act  will  not  give  it  legal  force.  But 
the  law-giving  power  is  simply  forbidden  to  make  arbi- 
trary injustice  into  justice  under  the  form  of  law,  for 
those  principles  comprehend  only  the  most  general  doc- 
trines of  the  law,  viz. :  that  no  one  shall  be  convicted 

^  Den,  Murray  and  Kayser  vs.  The  Hohoken,  etc.,  Company,  How- 
ard, XVIII.,  276. 


THE   FEDERAL   CONSTITUTION.  253 

unheard ;  that  the  facts  alleged  must  be  examined  into ; 
and  that  a  decision  shall  be  made  only  after  a  legal  trial 
of  the  facts  in  a  court  of  competent  jurisdiction.*  This 
leaves,  therefore,  the  broadest  scope  to  the  legislative  will. 
The  words  "  due  process  of  law,"  in  the  fifth  and  four- 
teenth amendments,  are  in  full  accord  with  this  funda- 
mental doctrine,  but  they  do  not  say  that  the  procedure 
must  be  the  same  under  the  federal  constitution  and  the 
federal  laws  as  under  the  state  constitutions  and  state 
laws.  As  far  as  the  fourteenth  amendment  is  concerned, 
the  states  are  perfectly  free  to  give  the  "  due  process  of 
law  "  w^hatever  shape  they  please,  as  long  as  they  do  not 
violate  these  fundamental  principles.  Their  own  consti- 
tutions or  laws  have  made  binding  upon  them  in  sub-  jr 
stance  the  obligations  laid  upon  the  federal  government  ^ 

by  the  five  amendments  already  mentioned,  but  they 
were  not  compelled  to  do  this  by  the  federal  constitution, 
and  can,  so  far  as  it  is  concerned,  change  this  condition 
of  affairs  at  any  moment.  The  controversies  in  consti- 
tutional law  that  may  arise  out  of  this  provision  of  the 
fourteenth  amendment  would  probably  never  present  any 
considerable  difficulties,  if  it  were  always  easy  to  define 
with  certainty  the  meaning  of  the  words,  "  deprive  of 
property."  It  was  long  since  decided  that  the  corre- 
sponding provision  of  the  fifth  amendment,  and  conse- 
quently that  the  fourteenth,  does  not  forbid  every 
compulsory  taking  of  property  without  the  intervention 
of  a  court.  The  right  of  taxation  absolutely  excludes 
such  an  interpretation.  Moreover,  it  has  not  been  so 
much  the  direct  as  the  indirect  taking  of  property  which 
has  given  rise  to  the  chief  differences  of  opinion.  When, 
in  what  manner,  and  to  what  extent  may  a  state  regulate 
the  management  of  private  property?  These  are  ques- 
1  Webster's  Works,  V.,  487,  488. 


25-i  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

tions  which,  partly  in  connection  with  tJie  great  question 
of  the  obligation  of  legislative  contracts,  and  partly  in 
connection  Avith  the  question  of  the  guaranty  of  equal 
legal  protection,  have  repeatedly  of  late  years  occupied 
the  courts,  and  have  justly  excited  the  utmost  public  in- 
terest. 

In  the  case  already  cited,  2Iunii  vs.  Illinois,  9i  U.  S., 
113,  the  supreme  court  laid  down  the  principle  that 
"private  property  which  is  affected  with  a  public  interest 
ceases  entirely  to  be  jaris prlvatir  If  any  person  dedi- 
cates his  property  to  a  use  in  which  the  public  has  an 
interest,  he  grants  the  ])ab]ic  an  interest  in  this  use,  and 
must  himself  be  subject  thereto,  so  that  he  must  be  con- 
trolled, so  far  as  this  interest  so  created  by  him  is  con- 
cerned, by  the  common  good  of  the  public.  As  to  certain 
kinds  of  property,  this  principle  has  for  a  long  time  had 
a  restricted  meaning  in  American  jurisprudence.  It  has 
never  been  disputed,  for  instance,  that  common  carriers 
had  certain  duties  to  the  public,  and  that  these  could  be 
regulated  by  law.  The  question  is,  however,  whether 
the  principle  in  its  broad  generality,  as  laid  down  in  this 
case  by  the  supreme  court,  can  be  admitted,  and  whether 
the  control  by  the  public  —  that  is,  by  the  state  —  can 
always  assume  the  shape  of  the  state's  deciding  entirely 
by  itself  what  an  owner  shall  be  paid  for  the  use  of  his 
property?  The  principles  are  elastic  enough  to  involve 
manifest  absurdities,  such  as  the  regulation  of  the  rent  of 
dwelling-houses  by  the  state;  and  it  is  certain  that  the 
state,  if  it  can  establish  the  price  to  be  asked  for  the  use 
of  private  property  affected  with  a  public  interest,  could 
establish  that  price  at  such  a  figure  that  the  owner  would 
be  deprived  of  his  property  within  the  meaning  of  the 
constitution.  In  such  a  case  the  regulation  of  the  price 
by  law    would   be   manifestly  unconstitutional,  for   the 


THE   FEDERAL   CONSTITUTION.  255 

owner  would  not  have  been  deprived  of  his  property  by 
due  process  of  law.  If,  for  instance,  it  costs  a  railroad 
two  cents  to  carry  a  passenger  a  mile,  and  the  state  per- 
mits it  to  ask  only  one  cent  a  mile,  the  stockholders  are 
deprived  of  part  of  their  property,  because  they  are  thus 
prevented  from  getting  any  income  from  it.  But  if  the 
state  compels  them,  as  common  carriers,  to  continue  busi- 
ness, they  are  directly  deprived,  every  day,  for  the  benefit 
of  the  public  using  the  trains,  of  a  part  of  their  capital, 
because  the  operating  expenses  eat  up  the  capital.  Ex- 
perience has  already  shown  that  this  kind  of  oppression 
does  not  belong  merely  to  the  realm  of  empty  specula- 
tion. Public  opinion  has  indulged  in  highly  exaggerated  ( 
ideas  of  the  profits  of  railroads,  and  under  the  pressure! 
of  this  public  opinion  some  most  dubious  experiments! 
have  been  tried.  On  the  other  hand,  railroads,  elevator 
companies,  and  similar  corporations,  often  have  a  prac- 
tical monopoly,  by  which  they  can  oppress,  and  have  in 
fact  oppressed,  the  public  in  a  way  most  hurtful  to  the 
common  weal.  The  state  is  therefore  warranted  in  inter- 
fering by  law  to  prevent  this.  A  reasonable  legal  protec- 
tion for  the  public  against  improper  profits,  when  free 
competition  provides  no,  or  at  least  no  suflBcient,  protec- 
tion, will  not  be  regarded  as  a  taking  of  property  in  the 
sense  of  the  constitution.  As  to  railroad  companies,  it 
has  already  become  very  evident  that,  from  other  points 
of  view  as  well,  a  more  thorough  state  control  than  for- 
merly may  rightly  be  demanded.  Free  competition  has 
caused  far  greater  evils  than  monopoly.  The  so-called 
railroad  wars  not  only  injure  the  stockholders,  but  often 
lead  to  catastrophes  for  the  bondholders  (who  are  prac- 
tically unprotected),  and  throw  the  whole  business  system 
of  the  country  out  of  gear.  These  continually  increasing 
evils  have  reached  such  a  point  that,  in  my  judgment, 


25C)  COXSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

public  opinion  will  declare  Avith  growing  emphasis  in 
favor  of  the  doctrine  laid  down  by  the  supreme  court,  in 
sjiite  of  the  no  small  danger  that  its  application  will  be 
marked  with  mistakes  and  misuse  at  the  outset.  Ways 
and  means  of  preventing  and  curing  mistakes  and  abuses 
can  certainly  be  found.  Many  of  them  will  be  prevented 
by  the  steady  growth  in  public  favor  of  civil  service 
reform,  Avhich  deprives  the  public  offices  of  the  character 
of  *•  spoils,"  of  party  rewards  for  party  services,  and  so 
exerts  a  strono;  influence  in  o-ivino;  the  better  elements  of 
the  people  once  more  the  preponderance  in  legislative 
bodies.  Tliis  will  bring  about  a  deep-seated  change  in 
the  legal  systems  of  the  individual  states.  On  certain 
points,  in  reference  to  which  the  principles  of  Jaisser  aller 
have  hitherto  had  absolute  sway,  these  princijiles  will  be 
gradually  narrowed  down.  Xevertheless,  the  funda- 
mental character  of  all  the  institutions  of  the  country, 
the  customs  and  ways,  the  entire  body  of  thought  and 
feeling  of  the  people,  still  give  ample  assurance  that  state- 
interference,  even  if  carried  too  far  in  this  or  that  partic- 
ular, will  not  degenerate  into  its  opposite,  that  is,  into 
state-control  of  society. 

Other  decisions  of  the  federal  supreme  court,  such,  for 
instance,  as  the  Slaughter  House  cases,  already  men- 
tioned, show^  the  same  tendency  in  another  direction. 
They  do  not  involve  so  much  the  establishment  of  a  new 
princijile  as  the  creation  of  a  check  upon  the  attempts  to 
restrict,  unfairly,  an  already  recognized  principle  on  the 
ground  of  the  fourteenth  amendment.  The  attempt  was 
made  to  interpret  the  guarantee  of  equal  protection 
by  the  laws  in  a  way  which  sought  on  the  one  hand  to 
make  out  of  this  guarantee  a  strait-jacket  for  the  law- 
giving power  at  the  expense  of  the  common  weal,  and  on 
the  other  hand  to  subject  certain  sides  of  social  life  to  a 


THE   FEDERAL   CONSTITUTION.  257 

pressure  opposed  to  the  prevailing  condition  of  affairs  and 
simply  intolerable.  In  the  name  of  legal  equality  efforts 
were  made  to  limit  the  police  power  of  the  states  in  a 
way  which  would  have  made  a  proper  care  of  the  public 
good  impossible  in  many  cases.  So,  too,  in  the  name  of 
legal  equality  efforts  were  made  to  enforce  social  equality 
for  the  negroes.  Both  views  were  based  on  radical  ten- 
dencies. The  states  retained  the  freedom  of  action  they 
need.  On  the  latter  point,  it  is  certain  that  even  to  the 
negroes  themselves  and  even  in  the  former  slave  states 
this  result  was  of  great  value.  The  whites  are  not  con- 
stantly excited  against  them  by  having  their  society  forced 
upon  them  daily  and  hourly  in  railroads,  steamboats, 
hotels,  schools,  etc. ;  and  still  the  principle  of  republican 
equality  is  preserved,  because  the  colored  people  are  not 
treated  as  inferiors ;  they  get  what  they  pay  for ;  but  the 
law  does  not  require  the  fact  to  be  ignored,  that  they  are 
another  race,  whose  complete  social  amalgamation  with 
the  whites  would  run  counter  to  nature,  and  therefore  in 
the  interest  of  both  races  should  not  be  sought. 

§  85.  Arrests,  Search  Warrants  and  Seizures.  The 
fourth  amendment  corresponds  to  the  principle  of  English 
law  which  has  found  its  popular  formula  in  the  proud 
phrase :  "  My  house  is  my  castle."  Every  man  is  to  be 
protected  against  arbitrary  acts  of  the  public  powers. 
These  must  be  entrusted  w^ith  sufficient  authority  to  jl  ft^s.«^«-'t. 
arrest  criminals  and  to  remand  them;  but  they  cannot  J^ov'^il 
use  force  to  find  out  whether  there  is  good  cause  for  a 
judicial  inquiry.  "  The  right  of  the  people  to  be  secure 
in  their  persons,  houses,  papers  and  effects  against  unrea- 
sonable searches  and  seizures  shall  not  be  violated."  The 
second  clause  (connected  with  the  first  by  an  '"and")  sets 
forth  what  conditions  must  be  fulfilled  in  order  to  justify 
searches,  seizures  and  arrests.  It  is  not  expressly  stated 
17 


2")S  COXSTITUTIOXAL    LAW    OF    THE    UNITED    STATES. 

that  these  can  take  place  only  under  a  warrant,  but  this 
is  evident  because  this  clause  is  simply  explanatorj'^  of  the 
former.  Such  an  invasion  of  individual  rights  without  a 
Avarrant  is  not  permissible;  and,  too,  quite  a  number  of 
conditions  must  be  fulfilled  in  order  to  give  a  warrant 
legal  force.  These  conditions  are  that  probable  cause 
must  be  shown  by  oath  or  affirmation  for  its  issuance  and 
that  the  warrant  itself  must  clearly  describe  the  place  to 
be  searched,  the  person  to  be  arrested,  or  the  objects  to 
be  seized.  This  latter  provision  was  directed  against  the 
so-called  general  warrants  (since  abolished)  of  England, 
which  without  such  specifications  authorized  the  making 
of  arrests,  searches  and  seizures.  The  police  may  of 
course,  without  a  warrant,  in  the  legitimate  discharge  of 
their  duties,  demand  and  force  admission  into  a  house  and 
make  arrests.  AVhen  a  crime  has  just  been  committed,  this 
power  to  arrest  without  a  warrant  belongs  to  every  man. 
The  person  so  arrested  must,  however,  be  brought  at 
once  before  a  competent  court  or  magistrate.  If  any 
search  or  seizure  has  been  made  without  a  full  compliance 
with  the  conditions  of  this  amendment,  the  person  mak- 
ing it  is  always  required  to  prove  that  the  case  is  one  in 
which  the  public  interest  required  this  to  be  done.' 

§  86.  Criminal  Justice.  The  fifth,  sixth  and  eighth 
amendments  treat  especially  of  the  legal  safeguards  and 
benefits  which  must  be  given  a  person  accused  of  crime. 
The  sixth  amendment  is  simply  an  amplification  of  the 
third  paragraph  of  the  second  section  of  the  tiiird  article 
of  the  constitution.     The  provision  that  the  trial  of  all 

1  A  law  which  authorized  revenue  officers  to  require  a  merchant  t<» 
produce  his  books  and  papers  in  order  tiiat  they  might  satisfy  them- 
selves that  the  tax-laws  had  not  been  evaded  has  been  held  constitu- 
tional by  the  courts.  This  decision  may  be  all  right,  but  the  law  ha-; 
led  to  the  grossest  abuses. 


THE   FEDERAL   CONSTITUTION.  250 

crimes  shall  be  by  jury  is  enlarged  by  the  guarantee  of  a 
speedy  and  public  trial.  Inasmuch  as  some  of  the  states 
had  been  divided  into  two  judicial  districts,  it  is  more- 
over provided  that  the  trial  shall  take  place,  not  only  in 
the  state,  but  also  in  the  judicial  district,  in  which  the 
crime  has  been  committed.  Besides  this,  the  accused 
must  be  informed  of  the  nature  and  cause  of  the  charge ; 
must  be  confronted  with  the  witnesses  against  him ;  is 
entitled  to  compulsory  process  for  witnesses  for  the  defense 
and  also  to  the  assistance  of  counsel.^  The  word  "jury" 
means  the  common-law  jury  of  twelve  men,  who  must 
give  a  unanimous  verdict.  If  they  cannot  agree  a  new 
jury  must  be  drawn.  According  to  the  act  of  June  8, 
1872,  when  a  jury  is  being  impaneled,  in  cases  of  trea- 
son and  other  capital  crimes,  the  accused  is  entitled  to 
twenty  peremptory  challenges  (that  is,  may  reject  twenty 
jurors  without  giving  any  reason)  and  the  United  States 
to  five;  in  other  felonies  the  corresponding  figures  are 
ten  and  three;  and  in  all  other  cases  three  jurors  may  be 
set  aside  by  each  party.  The  fifth  amendment  provides 
that  no  person  shall  be  held  to  answer  for  a  capital  or 
"otherwise  infamous  crime  "  except  "  on  a  presentment  or 
indictment  of  a  grand  jury."  In  a  presentment  the  grand 
jury  acts  upon  its  own  knowledge  without  any  indictment 
having  been  presented  to  it,  and  the  indictment  must 
afterwards  be  suj)plied  by  the  court.  In  indictments  the 
grand  jury  does  not  act  on  its  own  initiative,  but  on  an 
indictment  submitted  to  it  for  its  decision.  It  is  admitted 
that  the  expression  "  infamous  crime  "  is  a  technical  one, 
but  the  definitions  are  neither  sufficiently  clear  nor  en- 
tirely harmonious.^    This  is,  however,  to  a  certain  extent, 

iln  England,  persons  accused  of  crime  were  not  entitled  to  the  as- 
sistance of  counsel  until  the  passage  of  the  act  of  1836. 
2  Brunner,  in  the  supplement  to  the  second  edition  of  Desty's  Con- 


2G0  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

of  no  importance,  because  in  all  crimes  which  come  within 
the  judicial  power  of  the  United  States,  the  complaint  is 
made  either  by  presentment  or  indictment.  A  grand 
jury,  according  to  the  law  of  March  3, 18G5,  must  consist 
of  not  less  than  sixteen  nor  more  than  twenty-three 
jurors.'  This  provision  of  the  fifth  amendment  does  not 
apply  to  the  federal  army  or  to  the  militia  when  the 
latter,  in  time  of  public  peril  or  of  war,  is  in  the  service 
of  the  United  States;  in  other  words,  they  may  be  sub- 
jected by  law  to  courts-martial,  l^o  one  can  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself.  Xo 
one  can  be  twice  put  in  jeopardy  of  life  or  limb  for  the 
same  offense.  A  man  is  put  into  jeopardy  (in  the  sense 
of  this  clause)  only  when  the  juiy  has  given  a  verdict. 
If  the  trial  has  to  be  stopped  for  any  legal  reason,  it  does 
not  count  as  a  trial  under  this  provision.  So,  too,  of 
course,  when  the  person  tried  is  granted  a  new  trial;  be- 
cause the  law  gives  him  this  for  his  own  benefit.  A 
new  trial  is  granted  when  the  court  considers  the  finding 
contrary  to  law  or  to  the  evidence  produced.  In  capital 
cases  the  court  can,  even  without  the  consent  of  the 
accused,  discharge  the  jury  if  it  thinks  there  is  good 
,  J  ground  for  doing  so.  If  the  jury  bring  in  a  verdict 
which  covers  only  some  points  of  the  complaint,  the  ac- 
l  cused  is  protected  against  a  new  trial  as  to  these,  but  not 
as  to  the  others.  If  the  jury  is  dismissed  without  the 
consent  of  the  accused,  and  it  was  not  a  case  in  which  the 
law  recognizes  this  as  necessary,  such,  for  instance,  as  a 
mistrial,  he  cannot  again  be  tried  for  the  same  offense 

stitutioH  of  the  United  States,  p.  320,  says:  "Infamous  crimes,  in  the 
meaning  of  this  clause,  are  only  those  made  infamous  or  declared  a 
felony  by  express  act  of  congress:"  and  cites  in  proof  of  this  United 
States  vs.  Wynn,  McCrary,  III.,  206. 

iSee  J.  Proffatt,  Law  of  Jury  Trial,  San  Francisco,  1877;  H.  Hirsh, 
Law  relating  to  Juries,  N.  Y.,  1879. 


THE    FEDERAL   CONSTITUTION.  261 

although  he  has  not  been  acquitted.*  The  eighth  amend- 
ment forbids  the  requirement  of  excessive  bail,  the  impo- 
sition of  excessive  fines  and  the  infliction  of  cruel  and 
unusual  punishments.  Bail  is  always  admitted,  except 
when  the  crime  charged  is  punishable  by  death  or  life- 
long imprisonment.  Even  in  these  cases  it  may  be 
taken. 

§  87.  Jury  Trials  in  Civil  Casks.  The  seventh  amend- 
ment provides  "  that  in  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved ;  and  no  fact  tried  by  a 
jury  shall  be  otherwise  re-examined  in  any  court  of  the 
United  States  than  according  to  the  rules  of  the  common 
law."  As  only  the  preservation  of  a  right  is  here  con- 
cerned, this  evidently  refers  to  the  English  common  law 
at  the  time  of  the  adoption  of  the  constitution,  and  the 
intention  is  to  extend  the  right,  so  far  as  constitutional  law 
permits,  to  cases  in  which  it  did  not  exist  before.  Moreover, 
since  it  is  only  a  right,  the  parties  can  waive  it.^  So,  too, 
the  right  is  sufficiently  preserved  when,  in  case  of  appeal 
from  the  first  decision,  a  trial  by  jury  may  be  demanded. 
It  is  to  be  noticed,  again,  that  the  right  is  restricted  to  suits 

1  To  the  provisions  of  the  fifth  amendment  as  to  criminal  procedure, 
there  is  coupled-on  the  prohibition  against  taking  private  property  for 
])ublic  uses  without  just  compensation.  It  goes  without  saying  that 
the  right  of  expropriation  belongs  to  the  federal  government  only  when 
public  uses  within  its  jurisdiction  are  concerned.  It  relates  back  to 
the  "  right  of  eminent  domain"  and  this  belongs  to  the  states,  except 
as  to  those  rights  deduced  from  this,  which  the  constitutional  purposes 
of  the  federal  government  require  to  be  vested  in  it.  In  the  territories 
the  United  States  have  the  right  of  eminent  domain.  If  a  ten-itory 
be  transformed  into  a  state,  the  right  passes  over  to  the  latter.  As 
to  the  right  of  eminent  domain  see  Cooley,  Constitutional  Limita- 
tions, ch.  XV. 

-  This  is  not  true  of  criminal  cases.  In  them  the  jury  is  a  necessary 
part  of  the  court,  and  the  axx;used  cannot  waive  it. 


2G2  CONSTITUTIONAL    LAW    OF    THE    UNITED    STATES. 

at  common  law;  in  equity  and  in  admiralt}'  and  maritime 
courts,  it  does  not  exist.  If  in  a  common-law  suit  the 
question  of  fact  has  been  decided  b}'  a  juiy  and  an  appeal 
is  taken,  the  a])pellate  court  has  nothing  to  do  with  the 
question  of  fact;  it  has  simply  to  decide  ^Yhether  the  law 
was  properly  ap])hed.  It  is  only  when  a  new  trial  is 
granted  that  questions  of  fact  are  retried,  but  even  then 
they  must  be  decided  again  by  a  jury.  Tlie  seventh 
amen(hnent  also  applies  in  common-lawsuits,  whicli  have 
first  been  tried  with  a  jury  in  a  state  court  and  are  then 
brought   by   appeal  before    the  United  States   supreme 

court. 

AMENDMENT  OF  THE  CONSTITUTION. 

§  88.  For  Amending  the  Constitution,  different  meth- 
ods are  provided  by  the  fifth  article.  The  initiatory  step 
may  be  taken  either  by  congress  or  by  the  state  legishi- 
tures.  The  latter  cannot  propose  any  amendments,  but 
congress  must  call  a  convention  for  this  purpose  if  the 
leirislatures  of  two-thirds  of  the  states  demand  it.  This 
has  never  yet  happened.  All  amendments  have  been  pro- 
posed by  congress,  in  which  body  two-thirds  of  each  house 
must  favor  the  proposition.  The  states  decide  whether 
its  proposals  shall  be  ratified,  but  congress  determines 
whether  the  vote  of  the  states  is  to  be  cast  by  their  legis- 
latures or  by  conventions  called  for  that  particular  pur- 
pose. In  either  case,  a  ratification  requires  the  assent  of 
three-fourths  of  the  states.  The  constitution  says  noth- 
ing as  to  an  obligation  on  the  part  of  the  states  to  come 
to  any  conclusion  about  a  proposed  amendment.  In 
practice  it  has  been  decided  that  there  is  no  such  obliga- 
tion. I  have  already  discussed  the  question  whether  and 
how  far  a  state  is  bound  by  its  assent  once  given.  This 
has  never  been  properly  settled,  and  it  is  by  no  means  im- 
possible that  it  may  yet  give  rise  to  serious  difficulties. 


PART  THIRD. 

THE  CONSTITUTIONAL  AND  GENEEAL  LAW 
OF  THE  SEPAKATE  STATES. 

§  89.  Preliminary  Kemarks.  I  cannot  attempt  to  treat 
the  general  law  of  each  of  the  thirty-eight  states  sep- 
arately. Regard  for  space  would  make  this  impossible, 
even  if  the  sketch  were  confined  to  the  most  superficial 
outline.  Yet  a  superficial  sketch  would  present  an  end- 
less array  of  repetitions.  But,  on  the  other  hand,  the 
most  cursory  perusal  of  the  different  state  constitutions 
suffices  to  convince  any  one  that  it  would  be  just  as  inad- 
missible to  select  a  certain  state  and  to  analyze  its  gen- 
eral law  as  a  type  of  the  whole.  The  selection  would  be 
entirely  arbitrary ;  for  there  are  so  many  and  such  impor- 
tant differences  in  details  that  no  state  can  be  used  as  a 
pattern  or  type  of  the  rest.  It  must  suffice,  therefore,  to 
give  a  general  characterization  in  broad  outlines,  laying 
especial  stress  upon  what  is  common  to  all  or  nearly  all, 
and  briefly  noting  the  most  important  differences.  In 
order  to  lessen  the  repetition  which  is  unavoidable,  and 
not  to  heap  up  a  mass  of  useless  details,  I  shall  not 
always  note  to  how  many  or  to  which  states  what  I  say 
applies.  If  the  matters  concerned  are  peculiar  to  one  or 
to  a  few  states,  this  will  be  pointed  out.  The  omission 
to  point  it  out  must  nevertheless  not  be  construed  as 
meaning  always  that  the  statement  is  one  of  quite  gen- 
eral application.  In  the  more  important  questions  in 
which  this  is  the  case  I  shall  say  so  expressly. 

§  90.  Origin  of  the  Constitutions.  The  constitutions 
of  the  states  arc  without  exception  the  work  of  constitu- 


2G4:       THE  CONSTITUTIONAL  AND  GENERAL  LAW 

tional  conventions.^  But  many  constitutions  contain  pro- 
visions that  became  constituent  parts  of  them  without 
the  meeting  of  any  constitutional  convention.  Conven- 
tions are  instruments  which  the  people  use  for  reasons  of 
expediency  in  constitution-making;  but  their  task  should 
always  be  limited  to  drafting  a  plan  of  a  constitution.  The 
people  —  as  all  the  constitutions  say,  in  a  more  or  less 
precise  formula  —  are  the  sole  possessor  of  political  power, 
and  the}^  alone,  therefore,  can  give  the  state  its  funda- 
mental law.  These  are  fundamental  principles.  It  is 
not  only  theoretically  that  they  are  of  the  highest  im- 
portance. It  has  repeatedly  become  of  the  greatest  polit- 
ical significance,  that  conventions  —  partly  by  appealing 
to  precedents  in  the  struggle  of  the  colonies  with  the 
mother  countiy,  and  partly  in  imitation  of  the  conven- 
tion of  the  first  French  revolution  —  have  claimed  to  be 
the  bearers  of  the  people's  sovereignty, —  a  claim  that  in 
its  final  logical  results  tends  to  a  complete  overturning  of 
the  fundamental  principle  of  American  popular  govern- 
ment, that  is,  transforms  popular  sovereignty  into  its  very 
opposite.-     This  doctrine,  which  rests  on  the  logical  ab- 

1  Americans  distinguish  between  revolutionaiy  and  constitutional 
conventions,  and  many  conventions  are  held  in  the  United  States 
which  have  notliing  to  do  with  adopting  or  amending  a  constitution. 

-'  It  suffices  to  recall  those  conventions  which  decreed  their  respect- 
ive states  out  of  the  Union  after  the  presidential  election  of  1860. 
The  Lecompton  convention  in  Kansas,  in  1857,  was  theoretically  of 
peculiar  interest  and  practically  of  great  importance.  It  proi^osed  to 
the  peojile  to  A'ote,  not  whether  or  no  they  would  adopt  the  whole 
constitution  as  drafted,  but  simply  whether  they  would  have  "  the 
constitution  with  slavery"  or  "the  constitution  without  slavery." 
The  majority  of  the  people  did  not  want  the  constitution  at  all.  At 
the  election  ordered  by  the  convention  "  the  constitution  with  slav- 
ery'" was  adopted  by  6,266  against  567  votes.  The  ten-itorial  legis- 
lature had  already  fixed  a  later  day  for  voting  on  the  general  question, 
and  at  this  election  10,266  votes  were  cast  against  the  constitution 


OF   THE    SEPARATE   STATES.  265 

surdit}'^  of  a  transfer  of  sovereignty,  which  is  identical 
with  its  entire  alienation,  is  constantly  losing  ground, 
especially  as  far  as  the  drafting  of  an  entire  constitution 
is  concerned.  Some  of  the  constitutions  provide,  not  only 
that  the  people  shall  decide  whether  a  general  revision  of 
the  constitution  is  to  be  made  by  a  convention,  but  also 
that  the  revised  or  new  constitution  shall  be  submitted  to 
the  people  and  be  voted  upon  by  them.  Hundreds  of 
thousands  of  citizens  can  act,  of  course,  onl}^  through 
representatives,  as  far  as  the  drafting  of  the  constitution 
is  concerned,  but  in  these  cases  the  people  have  reserved 
to  themselves,  expressly  and  unconditional!}^,  the  initi- 
ative as  well  as  the  final  decision.^ 

Here,  therefore,  no  argument  can  be  found  in  suf)port 
of  the  other  erroneous,  and  at  least  equally  dangerous, 
doctrine  that  "  the  people  " —  meaning  by  this  the  major- 
ity of  the  persons  with  full  political  rights  —  can,  by 
virtue  of  their  sovereignty,  amend  a  constitution  in  any 
form  or  manner  other  than  that  prescribed  in  the  consti- 
tution. The  idea  of  popular  sovereignty  has  entirely 
lost  in  the  United  States  that  vague  and  demagogic  char- 
acter which  in  the  first  French  revolution  made  it  the 
cause  as  well  as  the  cloak  of  all  imaginable  horrors. 

and  only  162  in  favor  of  it.  The  result  was  a  bitter  and  protracted  par- 
liamentary struggle,  which  finally  ended  with  the  victory  of  the  free- 
soil  party  and  of  the  principle  of  popular  sovereignty,  but  only  after 
the  slave  states  had  seceded.  The  number  of  conventions  whicli 
have  not  submitted  their  work  to  the  people  is  not  small.  Jameson 
(p.  446)  reckons  forty  of  them  up  to  1866.  Twenty -nine  of  these  re- 
vised the  existing  constitutions.  During  the  same  time  there  were 
seventy-eight  conventions  which  followed  the  correct  principle.  Some 
constitutions  contain  no  provisions  at  all  about  revision  by  conven- 
tion. 

1  This  applies  only  to  the  revision  of  a  constitution  by  a  convention. 
I  shall  refer  hereafter  to  the  initiative  of  legislatures  as  to  separate 
amendments. 


*2G6  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

Popular  sovereig-nt}^  is  the  sole  basis,  not  only  in  theory 
hut  in  ]M'actice.  of  the  entire  legal  system  of  the  Union 
;is  well  as  of  the  several  states;  but  aceonlin;]'  to  the 
American  theory  and  practice,  popular  sovereignty  is  not 
identical  with  a  boundless  arbiti'ariness.  The  ])C()i  Ic  can- 
not be  bound,  but  they  can  bind  thems.'lvos;  ami  pre- 
cisely because  they  have  bound  themselves  thoy  have  less 
right  to  ])lace  themselves  above  the  Uiw  e.-;ta!)li.-hod  by 
their  own  sovereign  will.  Although  this  pji'vei'ted  con- 
ception of  the  substance  of  sovereignty  has  alroudy  had 
its  history  in  tiie  United  States/  these  principle.-;  never- 
theless, from  generation  to  generation,  have  more  and 
more  mingled  with  the  flesh  and  blood  of  Amei'icans; 
and  this  explains  the  fact,  often  so  surprising  to  Euro- 
peans, tliat  we  see  displayed  n))on  the  broadest  demo- 
cratic basis  a  political  system  which.,  in  genci-al,  is 
characterized  by  an  eminently  conservative  spirit.  Dema- 
gogy has  often  found  in  this  system  a  wide  Held,  bat  ex- 
periments and  innovations  have  so  far  shown  tliemselves 
only  as  exce{)tions  which  prove  the  rule,  ;ind  tlie  agitation 
in  these  exceptional  cases,  except  as  to  the  doctrines  of 
the  radical  abolitionists,  has  never  jiassed  bevond  legal 
Ijounds.  Xot  despite,  but  in  a  great  measure  because  of, 
the  carrying  out  of  the  principle  of  popular  sovereignty, 
the  United  States  have  hitherto  been  a  less  favorable 
Held  for  revolutionary  tendencies  than  most  European 
states.  AVe  must  not  conclude  from  this,  as  Americans 
are  wont  to  do,  that  this  would  self-evidentlv  and  always 
be  the  case,  under  other  relations  and  with  other  nations. 
xj  1)1.  Constituent  Parts  of  the  Constitutkjxs.  The 
constitutions  usually  consist  of  three  parts:  the  bill  of 

1  See,  especially,  the  history  of  "  Dorr's  rebellion  "  in  Riiode  Island 
in  1841.  The  essential  facts  of  it  are  concisely  stated  by  Jameson, 
p.  216  et  seq. 


OF   THE   SEPARATE   STATES.  267 

rights,  the  constitution  proper,  or  frame  of  government, 
and  the  so-called  schedule.  The  last,  strictly  construed, 
is  no  constituent  part  of  the  constitution  at  all,  but  only 
an  appendix  of  temporary  importance.  Some  constitu- 
tions do  not  have  it  at  all.  It  contains  mainly  provisions 
as  to  how  the  people  shall  manifest  their  acceptance  or 
rejection  of  the  proposed  constitution,  and  as  to  the  ar- 
rangements necessary  (in  case  of  acceptance)  in  passing 
from  the  old  to  the  new  condition. 

The  bill  of  rights  contains  the  "  fundamental  rights." 
As  a  rule  it  is  thus  entitled,  and  is  put  at  the  beginning 
of  the  constitution.  The  discussion  of  bills  of  rights  in 
detail  does  not  seem  necessary,  for  not  only  do  they  agree 
in  their  essential  contents,  but  they  merely  set  forth  at 
large  and  in  detail  the  principles  which  have  already 
been  stated  as  arisin":  from  the  so-called  bill  of  rio^hts  of 
the  federal  constitution.  It  must  be  emphasized  that 
here,  too,  the  fundamental  rights  are  not  first  granted  by 
the  constitution ;  they  are  regarded  as  existing  rights, 
and  are  enumerated  in  the  constitution  only  in  order  to 
protect  them  in  the  most  effective  way  against  any  viola- 
tion by  the  organs  of  public  power.  And  for  this  reason, 
the  bill  of  rights  often  ends  with  the  declaration  that  the 
enumeration  of  certain  fundamental  rights  must  not  be 
construed  as  meaning  that  the  people  have  waived  others. 

Organization  of  the  Government.  The  separation 
of  the  legislative,  executive  and  judicial  powers  is  as 
thoroughly  carried  out  in  all  the  states  as  in  the  federal 
government.  Many  of  the  state  constitutions  expressly 
declare  that  no  one  of  the  three  shall  trespass  upon  the 
spheres  of  the  others,  so  far  as  the  constitution  does  not 
otherwise  provide. 

§  92.  TuE  Legislative  Power.  As  a  rule  the  oflScial 
name  of  a  state  legislature  is  "  the  general  assembly,"  but 


268  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

in  ordinary  speech  it  is  called  simply  tlie  leoislaturo.  In 
all  the  states  the  legislatures  consist  of  two  chambers; 
the  more  numerous  is  styled  the  assembly  or  house  of 
rei)resentatives,  and  the  smaller  the  senate.  Neither  the 
franchise  nor  the  right  to  seek  office  were  originally  con- 
trolled by  radical  democratic  principles.  In  the  course 
of  time  these  have  become  more  and  more  victorious 
everywhere.  Although  certain  restrictions  still  exist  here 
and  there,  yet  all  in  all  I  am  justified  in  saying  that  since 
the  adoption  of  the  fifteenth  amendment  so-called  uni- 
versal sufiTage  has  become  the  rule  every  whei'e.  So,  too, 
the  restrictions  on  the  right  to  seek  office  relate  onl}^  to  the 
age  and  to  the  domicile.  The  provisions  as  to  the  latter 
are  much  more  strict  than  in  the  constitutional  states  of 
Europe.  In  the  latter  the  principle  prevails  that  the 
voters  may  seek  their  representatives  where  they  please, 
but  in  the  United  States  it  is  thought  necessary  to  lay 
great  stress  upon  local  representation.  In  some  of  the 
states  the  regulation  of  this  question  is  not  even  left  to 
legislation;  the  constitutions  provide  that  the  transfer  of 
the  domicile  from  the  election  district  involves  absolutely 
the  loss  of  the  office  and  excludes  —  of  course — re-elec- 
tion. As  generally  recognized  is  the  principle  that  paid 
officials  cannot  be  members  of  the  legislature.  This  ap- 
plies, indeed,  to  state  as  well  as  federal  officials.^  On  the 
other  hand,  no  member  of  the  legislature  can  be  ap- 
pointed to  a  state  office  which  was  created  or  had  its 
emoluments  increased  during  his  term  of  membersliip. 
In  a  few  of  the  states  clergymen  are  also  excluded  from 
the  legislature.  If  different  qualifications  are  required 
for  membership  in  the  two  chambers,  it  is  only  as  to  age. 

1  Some  officeholders,  such  as  justices  of  the  peace,  are  usually  ex- 
cepted, because  they  cannot  be  regarded  as  officials  in  the  ordinary 
sense  of  the  word,  although  they  occupy  a  public  office. 


OF   THE    SEPARATE    STATES.  269 

A  difference  in  principle,  such  as  that  which  applies  to 
the  two  houses  of  congress  has  no  existence  in  the  case 
of  the  two  chambers  of  a  legislature.  The  senators  as 
well  as  the  members  of  the  assembly  are  directly  voted 
for  at  the  polls,  and  the  sole  difference  is  in  the  size  of 
the  election  district.^ 

The  term  of  office  is,  with  few  exceptions,  a  different 
one,  and  that  of  the  senators  is  generally  twice  that  of 
the  assemblymen.  The  rule  is  four  and  two  years,  re- 
spectively. These  figures  are  never  exceeded.  In  the 
assembly  the  members'  terms  all  end  at  the  same  time. 
In  the  senate,  as  a  rule,  half  the  members  hold  over. 
This  increases  the  possibility  (as  it  does  in  the  case  of 
congress)  that  the  two  chambers  will  be  controlled  by 
different  parties;  but,  on  the  other  hand,  the  continuity 
in  the  upper  chamber  serves  to  strengthen  conservative 
tendencies.  More  stress  may  be  laid  upon  this  because  — 
as  we  shall  see  when  we  discuss  the  executive  power — in 
the  separate  states  even  more  than  in  the  federal  govern- 
ment, parliamentary  government,  in  the  European  sense 
of  the  word,  is  something  entirely  foreign  to  American 
constitutional  and  general  law. 

The  regular  meetings  of  the  legislatures  take  place, 
some  annually  and  some  every  second  j^ear.  Of  late,  the 
drift  of  public  opinion  has  been  such  that  probably  in  the 

1  In  Illinois  the  constitution  of  1870  introduced  minority  represen- 
tation for  the  house  of  representatives.  The  section  reads:  "The 
house  of  representatives  shall  consist  of  three  times  the  number  of 
the  members  of  the  senate,  and  the  term  of  office  shall  be  two  years. 
Three  representatives  shall  be  elected  in  each  senatorial  district. 
.  .  .  In  all  elections  of  representatives  aforesaid,  each  qualified 
voter  may  cast  as  many  votes  for  one  candidate  as  there  are  repre- 
sentatives to  be  elected,  or  may  distribute  the  same,  or  equal  parts 
thereof,  among  the  candidates,  as  he  shall  see  fit,  and  the  candidates 
highest  in  votes  shall  be  declared  elected." 


270  THE    COXSITTL'TIONAL    AND    GENERAL    LAW 

course  of  time  annual  sessions  will  disappear.  Experience, 
it  is  said,  has  proven  in  many  states,  that  the  legislatures, 
having  naught  to  do  with  higher  politics,  can  very  well, 
in  ordinary  times,  attend  in  one  session  to  all  real  wants 
in  the  way  of  legiskition  for  two  years,  and  extraordi- 
nary circumstances  ai'e  sufficiently  cared  for  by  the  fact 
that  the  governor  can  call  special  sessions  of  the  legisla- 
ture. The  experience  ot  the  states  which  have  annual 
legislative  sessions  has  also  shown  that  the  legislatures. 
when  they  do  not  find  enough  to  do,  always  know  how 
to  make  something  to  do.  Once  assembled,  they  seem  to 
feel  in  duty  bound  to  sit  for  a  certain  time  and  to  pass  a 
certain  number  of  laws.  The  legislative  statistics  of  the 
states  which  have  tried  both  plans  show  that  with  annual 
sessions  just  as  many  laws  are  passed  each  year  as  with 
biennial  sessions  are  passed  every  second  year.  In  the 
former  case  it  is  evident  that  many  laws  wliich  were  at 
least  unnecessary  have  been  enacted ;  and  unnecessary  laws, 
simply  because  they  are  unnecessary,  always  do  harm. 
The  stability  of  relations  so  essential  to  the  welfare  of 
the  state  and  of  society  is  thus  quite  uselessly  dcstroj'ed 
and  a  highly  dangerous  craving  for  experiment  fostered. 
That  there  is  much  truth  in  this  argument  cannot  be  dis- 
puted by  any  one  who  examines  the  facts  witliout  preju- 
dice. The  opinion  that  it  might  be  wise  to  bridle  the 
legislative  zeal  for  law-making  is  too  old  a  one,  in  the 
United  States,  to  be  suppressed  b\'  declaring  it  to  be  a 
heresy  aifecting  the  fundamental  principles  of  democracy. 
Several  constitutions  limit  the  length  of  the  session.  In- 
deed,  they  measure  out  the  time  in  quite  a  niggardly 
way  —  forty  and  forty-five  Cbut  also  sixty  and  ninety) 
days.  Of  course,  the  established  time  can  be  exceeded, 
but  it  nc'.;fls  so  large  a  majority  to  do  this  that  it  cannot 
be  done  easily  or  on  any  but  reallv  valid   o-i-ounds.     The 


OF   THE    8EPAEATE    STATES.  271 

constitution  of  Nebraska  (adopted  1807)  tried  an  odd 
remedy.  It  did  not  limit  the  duration  of  the  sessions,  but 
while,  like  the  constitutions  of  all  the  other  states,  it 
adopted  the  principle  of  paying  the  members  of  the  legis- 
lature a  per  diem.,  it  provided  that  they  should  not  be 
paid  this  for  more  than  forty  days.  As  far  as  the  desired 
effect  can  be  expected  from  this  sort  of  pressure,  it  could 
also  be  brought  about  by  paying  a  proper  annual  salary 
instead  of  a  per  diem.  This  has  also  been  tried  (in  Wis- 
consin, by  an  amendment  adopted  by  the  people  in  1867), 
but  except  in  the  case  of  these  states  public  opinion  has 
either  not  yet  been  warmed  up  to  these  experiments,  or 
has  busied  itself  only  with  the  question  whether  changes 
in  this  direction  are  desirable. 

The  question  of  the  powers  of  the  legislatures  is  essen- 
tially difi'erent  in  constitutional  law  from  the  question  of 
the  powers  of  congress.  Congress  has  only  the  powers 
granted  it  by  the  federal  constitution.  The  legislative 
power  of  the  state  legislatures,  on  the  contrary,  is  unlim- 
ited, as  far  as  no  limits  are  set  to  it  by  the  federal  or  the 
state  constitution.^  This  does  not  mean,  however,  that 
these  restrictions  must  always  be  expressed  in  explicit 
words.  As  it  is  generally  admitted  that  the  factors  of 
the  federal  government  have  certain  "implied  powers,"  so 
it  has  never  been  disputed  that  the  state  legislatures  are 
subject  to  "implied  restrictions,"  that  is,  restrictions 
which  must  be  deduced  from  certain  provisions  of  the 
federal  or  state  constitution,  or  that  arise  from  the  polit- 

l  "  The  rule  of  construction  of  state  constitutions  is  that  they  are  not 
special  grants  of  power  to  legislative  bodies,  like  the  constitution  of 
the  United  States,  but  general  grants  of  all  the  usually  recognized 
powers  of  legislation  not  actually  prohibited  or  expressly  excepted. 
The  exception  must  be  construed  strictly  as  against  those  who  stand 
upon  it,  and  liberally  in  favor  of  the  government."  Southern  Pacific 
E.  R.  Co.  vs.  Orton,  6  Sawyer,  157;  Hammond,  I.,  20,  §  28. 


272  THE    CONSTITUTIONAL    AND    GENP:RAL    LAW 

ical  nature  of  the  Union,  from  the  genius  of  American 
pubhc  institutions,  etc.  But  in  a  discussion  of  the  author- 
ity of  the  state  legislatures,  the  question  ahva^'S  is,  not 
wliat  can  the}^  do,  but  what  cannot  they  do  ?  Then  comes 
the  further  question:  how  must  they  do  what  they  are 
authorized  to  do?  On  both  questions.  I  can  here  present 
only  a  few  especially  significant  or  especially  character- 
istic results  of  the  doctrines  already  developed. 

The  legislative  initiative  belongs  exclusively  to  the  legis- 
latures and  to  both  chambers  in  exactly  the  same  way. 
It  is  true  that  here  and  there  an  assembly  has  been 
granted  the  privilege  of  originating  all  "money  bills," 
but  the  idea  has  steadily  become  of  more  general  accept- 
ance that  there  is  even  less  reason  for  a  legislature's  than 
for  congress's  taking  the  English  constitution  as  a  pattern 
in  this  particular.  For  the  senates  of  the  state  legisla- 
tures are  just  as  much  popular  bodies  (/. «?.,  representatives 
of  the  people)  as  the  assemblies.  There  is  therefore  no 
analogy  of  relations.  This  freedom  of  initiative  does  not, 
however,  involve  complete  freedom  in  matters  of  form. 
A  large  number  of  state  constitutions  provide  expressly 
that  every  law  shall  contain  but  one  subject, —  a  provision 
that  might  well  be  brought  into  the  federal  constitution, 
because  wrong  is  often  done  in  federal  legislation  by  the 
so-called  "  riders."  ^  The  "  appropriation  bills,"  especially, 
have  been  used  to  carry  through  measures  which,  if  pro- 
posed independently,  would  either  not  have  received  a 
majority  of  votes  in  congress  or  else  not  have  been  ap- 
proved by  the  president.  As  long  as  it  has  not  been 
expressly  declared  unconstitutional,  in  so  many  words,  to 
couple  together  in  one  law  subjects  foreign  to  each  other, 
and,  moreover,  as  long  as  the  president  for,  in  a  state,  the 
governor)  can  only  approve  or  return  appropriation  bills 

1  See  my  Constitutional  History,  III. 


OF   THE    SEPARATE    STATES.  273 

in  toto,  the  majority  of  one  or  the  other  house  will  be  ex- 
posed to  the  temptation  —  especially  in  times  of  great 
political  excitement  —  of  making  their  will  law  in  this 
disloyal  and  disgraceful  way. 

Of  scarcely  less  importance  is  the  provision,  found 
likewise  in  many  constitutions,  that  each  bill  must  be 
read  three  times  loudly  and  distinctly,  word  for  word. 
If  this  had  to  be  done  in  congress,  much  mischief  would 
be  prevented.  There  the  bills  are  often  read  only  by 
their  titles,  and  at  the  close  of  each  session  a  veritable 
flood  of  bills  breaks  upon  the  house.  And  they  are  voted 
upon,  although  most  members  have  no  inkling  of  the 
contents  of  a  large  part  of  them.  It  goes  without  say- 
ing that  this  results  in  smuggling  through,  every  year, 
many  things  which  could  not  stand  the  light  of  day. 

There  is  a  striking  clause  in  several  constitutions  which 
provides  that  for  the  adoption  of  a  proposed  bill  the  ma- 
jority of  those  present,  that  is,  of  the  members  voting, 
shall  not  suffice,  but  that  a  majority  of  all  the  members 
elected  is  required.  The  essential  motive  for  this  provis- 
ion may  be  the  quite  general  belief  that  the  welfare  of 
the  people  is  best  subserved  if  the  legislative  machine 
moves  as  safely  as  possible,  and  that  therefore  the  disad- 
vantages resulting  from  the  difficulty  of  passing  good 
laws  are  more  than  counterbalanced  by  the  benefits  re- 
sulting from  the  difficulty  of  passing  bad  laws.  It  is, 
however,  not  improbable  that  this  rule  is  more  particu- 
larly directed  against  the  danger  that  laws  which  did  not 
correspond  with  the  real  will  of  the  legislature  might  be 
carried  through  by  an  unscrupulous  minority  by  deftly 
seizing  the  opportunity  of  voting  on  them  at  a  certain 
moment  when  a  bare  quorum  was  present.  It  is  easy  to 
think  so,  because  in  the  constitutions  of  more  recent  date 
manifold  other  provisions  have  been  adopted  that  can  be 
18 


274  THE    COXSTITUTIONAL    AND    GENERAL    LAW 

explained  only  by  the  conviction  that  enough  care  can 
scarcely  be  taken  to  guard  against  the  tricks  of  unprinci- 
pled politicians  who  have  known  how  to  win  a  seat  in  the 
legislature.'  The  precautions  taken  go  so  far  in  some 
cases  that  the  courts  either  cannot  take  cognizance  of  viola- 
tions of  the  provisions  in  point  or  for  other  reasons  cannot 
make  them  the  basis  of  a  decision, —  a  manifest  and  very 
dangerous  anomaly;  for,  if  unconstitutionality  makes 
laws  null  ancl  void,  and  courts  must  decide  whether  laws 
are  unconstitutional,  the  constitutions  should  contain  no 
provisions  which  may  cause  the  constitutional  question 
to  be  raised  at  any  moment,  but  in  the  very  nature  of  the 
thing  exclude  every  possibility  of  its  decision.  More- 
over, the  abuses  in  the  legislatures  in  the  separate  states, 
to  which  these  provisions  so  pointedly  refer,  cannot  pos- 
sibly be  prevented  by  such  formal  precautions.  These 
apply  solely  to  the  symptoms.  They  leave  the  causes 
utterly  untouched.  "When,  however,  it  is  thought  neces- 
sary to  provide  in  a  most  skilful  way  these  formal  pre- 
cautions, it  is  evident  that  the  abuses  are  so  grave  as  to 
demand  the  most  serious  efforts  to  reach  their  roots. 
And  this  the  more,  because  the  limits  of  the  legislative 
authority  of  the  legislatures  are  so  wide,  and  as  a  result 
of  the  principle  already  laid  down  cannot  be  defined  with 
the  certainty  and  clearness  that  might  be  wished.  It  is 
far  easier  to  prevent  an  abuse  of  power  if  what  may  be 
done  can  be  defined  than  it  is  when  the  only  statement 
is  as  to  what  may  not  be  done,  and  yet  the  necessary 
freedom  of  action  is  to  be  preserved.     But  if  in  the  prac- 

^See  in  the  Nation  of  July  15,  1875,  the  article  entitled  "A  New 
Kind  of  Veto."  It  says  that  "  provisions  like  these  .  ,  .  proceed 
not  upon  tlie  theory  that  certain  subjects  have  been  proved  by  expe- 
rience improper  for  legislation,  but  on  the  much  simpler  theory  that 
the  legislature  is  a  body  which  cannot  be  trusted  to  act  honestly." 


OF   THE    SEPARATE    STATES.  275 

tical  workings  of  legislation  evils  have  come  to  light  and 
have  developed  in  such  a  threatening  manner  that  it  has 
been  deemed  necessary  to  provide  such  formal  precau- 
tions, this  is  scarcely  at  all  due  to  the  fact  that  the  choice 
of  means  to  prevent  such  evils,  when  the  constitutions 
were  drafted,  was  not  quite  happ}'".  The  appearance  and 
development  of  these  evils  is  much  more  due  to  quite  spe- 
cial causes,  chief  among  which  is  the  fact  that  oflBces  are 
treated  as  party  booty  (spoils)  for  the  payment  of  party 
services,  and  thereby  politics  is  made  a  business  which  is 
the  more  profitable  the  more  unclean  it  is,  and  which 
promises  a  man  a  surer  chance  to  climb  the  political  lad- 
der the  more  he  subordinates  statesmanship  to  the  polit- 
ical machine.  Apart  from  this  question  of  office,  the 
regulation  of  which,  moreover,  is  mainlv  left  to  the  law- 
giving  power,  the  constitutions  have  found  very  correctly 
the  points  which  are  the  most  essential  for  assuring  pure 
legislation  intended  for  the  true  welfare  of  the  people. 
Moreover,  the  correct  fundamental  principles  are  as  a 
rule  applied  to  details  in  a  proper  and  effective  way  with 
no  small  skill.  Many  of  the  constitutions  put  each  indi- 
vidual member  of  the  legislature,  as  far  as  possible,  under 
the  steady  and  immediate  control  of  public  opinion,  by 
providing  that  in  passing  bills  and  in  all  elections  by  the 
legislature  the  vote  must  be  bv  roll-call  and  viva  voce, 
while,  on  the  contrary,  in  popular  elections  the  secret 
vote  by  ballot  is  the  unbroken  rule  of  all  the  states. 
The  more  recent  constitutions  are  especially  careful  to 
keep  the  legislatures  as  far  as  possible  from  all  tempta- 
tions to  abuse  their  power.  Experience  has  taught  that 
these  temptations  are  most  potent  in  cases  of  "  special 
legislation,"  and  therefore  the  tendency  has  become 
stronger  to  bind  the  hands  of  the  legislatures  as  firmly 
as  possible  in  relation  to  this;  to  allow  them  to  enact 
only  general  laws  in  order  not  to  give  advantages  of  one 


27()  THE    COXSTITUTIOXAL    AND    GENERAL    LAW 

kind  or  another  to  individuals  at  the  expense  of  all. 
Special  attention  is  therefore  given  in  the  constitutions  to 
the  ciiapter  on  "corporations."  In  relation  to  these  the 
course  of  legislation  is  as  precisely  defined  as  the  nature 
of  the  subject  will  ])ermit.  For  inasmuch  as  this  involv-es 
moneyed  interests,  often  of  vast  proportions,  the  most 
powerful  levers  may  be  applied  to  break  a  wide  gap  for 
corruption.  The  power  to  pledge  the  means  or  cr(Mlit  of 
a  state  in  an}*  wise  whatsoever  for  a  corporation  is  either 
strictly  limited  or  entirely  denied.  Some  constitutions 
go  still  further.  They  seek  generally  to  keep  the  state 
aloof  from  all  matters  in  which  considerable  sums  are  to 
be  spent  in  a  manner  which  might  offer  people  with  easy 
consciences  and  dexterous  as  well  as  covetous  hands  a 
good  opportunity  to  fill  their  own  pockets  out  of  the  pub- 
lic purse.  Several  constitutions  absolutely  prohibit  the 
state's  undertaking  such  works  of  general  utilit}*  as  are 
called  in  the  United  States  "internal  improvements."' 
Others  refuse  the  power  to  contract  debts  in  this  behalf, — 
a  policy  that  certainly  has  two  sides  to  it.  To  show  this 
I  need  only  refer  to  the  history  of  the  Erie  canal,  which 
Xew  York  must  in  a  large  measure  thank  for  her  domi- 
nant position  in  the  economic  life  of  the  Union.  This 
example  points  to  the  second  motive,  that,  besides  the 
reasons  assigned,  lies  at  the  foundation  of  these  pro- 
visions. The  American  people  is  almost  unanimous  in 
the  opinion  that  the  state  should  undertake  no  tasks 
which  private  efforts  can  compass.  This  opinion  has 
been  strenij-thened  of  late  bv  the  history  of  the  land 
grants  to  railroads,  since  the  completion  of  the  great 
transcontinental  railroads,  which  without  such  assistance 
could  not  have  been  built.' 

'  These  roads,  Jiowever,  are  not  the  only  ones  which  have  received 
land  grants  from  congress.  The  first  grants  were  made  September 
20,  1850,  for  the  benefit  of  the  Illinois  Central,  Mobile  &  Chicago, 


OF   THE   SEPARATE    STATES.  Z  <  « 

Among  the  most  intelligent  and  cultured  Americans 
the  admission  is,  however,  not  infrequently  made  that  the 
state's  sphere  of  activity  at  present  cannot  be  extended 
beyond  what  is  barely  necessary,  because  the  govern- 
ment is  in  such  hands  that  increased  activity  by  it  in  the 
direction  indicated  might  be  expected  to  add  new  and 
greater  evils  to  the  evils  now  due  to  private  control  of 
large  public  interests,  such  as  the  greater  part  of  the  pub- 
lic, channels  of  commerce.  It  is  evident  not  only  from 
the  formal  precautions  already  mentioned,  but  also  from 
many  other  constitutional  provisions,  that  the  idea  pre- 
vails that  a  legislature  must  be  approached  with  a  certain 
amount  of  distrust.  In  this  respect,  the  constitutions  are 
a  faithful  expression  of  public  opinion.  This  is,  indeed, 
one  of  the  most  characteristic  differences  between  the 
constitutions  of  the  separate  states  of  the  Union  on  the 
one  hand,  and  on  the  other  hand  the  constitutions  of 
European  states,  and  also  that  of  the  United  States.  On 
an  important  question  this  distrust  sometimes  assumes  a 
shape  which  lets  it  appear  more  in  the  light  of  a  guardian- 
ship, but  it  is  none  the  less  overwhelming.^    As  a  rule,  so 

and  Mobile  &  Ohio  River  roads.  From  the  date  mentioned  until 
March  3,  1873, —  since  then,  so  far  as  I  know,  no  gi-ants  have  been 
made, —  there  were  one  hundred  g.rauts  to  seventy-two  railroads, 
making  a  total  of  about  one  hundred  and  ninety  million  acres.  The 
last  figure  is  calculated  from  those  given  in  the  report  of  the  com- 
missioner of  the  general  land  office,  but  the  government  itself  de- 
clares that  these  figures  are  unreliable.  The  Union  and  Central  Pacific 
received,  besides  the  land  grants,  a  subsidy  of  about  $55,000,000  in 
the  form  of  a  government  guarantee  of  their  bonds.  The  govern- 
ment has  as  security  a  second  mortgage  on  the  railroads.  The  land 
grants  are  so  made  that  a  certain  number  of  sections  on  both  sides  of 
the  line  of  road  is  granted  for  each  mile  built.  The  number  of  sec- 
tions varies. 

1  The  following  utterances  of  the  Nation  of  January  29,  1885,  are 
very  noteworthy:  "The  assembling  of  the legislatui'es  of  the  various 


27S  Tin:  coxstitutioxal  axd  general  law 

far  as  financial  legislation  is  concerned,  the  legislatures 
are  subject  to  very  precise  rules.  These  are  intended  to 
prevent  a  disordered  and  lax  management  of  the  finances, 
and  as  they  attain  their  aim  as  far  as  constitutional  pro- 
visions can  do  so,  they  present  no  occasion  for  unfavor- 
able criticism.  The  unconditional  obligation,  ^vhen  a 
public  debt  is  contracted,  to  make  arrangements  at  the 
same  time  for  its  redemption  —  sometimes  the  redemption 
must  take  place  within  a  very  limited  time  —  unquestion- 
ably deserves  all  praise.  A  very  peculiar  impression  is 
made,  however,  by  the  fact  that  the  constitutions  fix  the 
maximum  of  the  |)ermissible  state  del}t,  and  in  fact  fix  it 
so  low  that  even  a  small  city  could  bear  the  burden  with- 
out peril.  The  extraordinary  instances  of  a  war,  of  sedi- 
tion or  of  an  invasion  are  always  excepted,  indeed,  and 

states  for  their  winter's  work  has  attracted  fresh  attention  to  the  ma- 
chinery of  legislation  and  produced  many  suggestions  on  the  subject. 
All  of  these  rest  generally  on  the  idea  that  most  legislative  work  in 
the  United  States  is  defective  and  slipshod ;  that  the  laws  are  badly 
drawn ;  that  they  ai-e  passed  without  proper  reference  to  and  com- 
jjarison  with  statutes  already  in  force ;  tltat  they  are  frequently  jobs 
disguised  as  statutes.  Governor  Hill,  of  this  state  [New  York],  in  his 
first  message,  recommended  that  a  lawj-er  be  appointed  as  perma- 
nent legislative  counsel,  to  draft  bills,  to  advise  the  members  and 
committees  with  reference  to  proposed  legislation,  and  to  insjiect  the 
various  bills  before  their  final  passage,  so  as  to  detect  en-ors  and  im- 
perfections and  to  suggest  neccessary  amendments.  The  necessity  of 
taking  some  such  step,  he  thinks,  is  shown  very  clearly  by  the  fact 
that,  during  the  session  of  1883,  in  this  state,  some  forty -five  bills 
were  recalled  from  the  executive  chamber  after  their  final  passage 
for  necessary  amendment  and  correction,  while  during  the  session  of 
1884  there  were  fifty  such  instances  ( !).  The  critics  of  the  governor's 
recommendation  can  only  say  in  reply  to  this  that  such  work  ought  to 
be  done  bj'  the  legislative  committees  themselves ;  but  the  evil  to  be 
cured  is  the  fact  that  the  committees  will  not  do  it.  The  only  ma- 
cliinery  for  pi-eventing  bad  legislation  at  Albany  is  the  veto  of  the 
governor,  and  the  governor  now  has  to  do  the  work  of  legal  adviser  to 
the  legislature,  through  the  veto  jjower,  in  a  very  clumsy  way;  i.  e.. 


OF   THE    SEPARATE   STATES.  279 

the  American  states  are  rich  enough  to  make  their  or- 
dinary taxes  meet  their  ordinary  wants  by  Iionest  and 
half-way  reasonable  economy  without  difficulty.  But  a 
refusal,  except  in  the  cases  when  the  very  existence  of 
the  state  is  more  or  less  threatened,  of  the  right  to  nego- 
tiate a  loan, —  for  the  right  of  borrowing  a  few  hundred 
thousand  dollars  is  but  a  nominal  one, —  such  a  refusal 
can  be  justified  only  on  the  supposition  that  certain  tasks 
which  are  ordinarily  performed  by  the  civilized  states  of 
the  old  world  ought  not  to  be  undertaken  by  the  Ameri- 
can states,  if  these  tasks  require  the  expenditure  of  more 
money  than  the  current  revenue  can  supply.  In  such 
matters,  the  states  cannot  go  to  work  in  a  far-sighted 
way  for  future  benefits.  They  must  limit  themselves  to 
a  policy  of  to-day  and  to-morrow.    It  is  evident  from  the 

he  has  in  most  cases  to  correct  defects  by  killing  the  bUls,  when,  if 
the  legislature  could  have  been  properly  advised  at  the  outset,  amend- 
ments might  have  been  made  which  would  have  enabled  him  to  sign 
them."  These  circumstances  are  the  more  significant  because  in  all 
legislatures  lawyers  form  the  most  prominent  element.  These  evils 
appear  in  their  worst  form  in  the  so-called  "  private  bills."  Of  these 
the  article  quoted  says :  "  As  soon  as  business  begins,  a  great  crop  of 
bills  is  introduced,  most  of  which  are  designed  to  give  some  person  or 
corporation  a  special  privilege  under,  or  exemption  from,  the  opera- 
tion of  laws  binding  on  the  community.  These  bills  are  drawn  up,  not 
by  the  legislators  wlio  introduce  them,  but  by  lawyers  privately  re- 
tained and  paid  by  the  special  interests  behind  the  bills,  and  who, 
naturally  enough,  as  long  as  they  get  what  their  clients  want,  care 
very  little  what  the  effect  on  the  general  body  of  the  law  may  be. 
When  the  bills,  thus  prepared,  get  into  committee,  there  are  no  rules 
of  any  value  governing  the  procedure  with  regard  to  them.  Those 
interested  adversely  have  not  necessarily  any  notice  to  appear ;  there 
is  no  attempt  to  take  proof  judicially,  but  '  counsel '  are  permitted  to 
make  any  statements  they  please."  As  a  remedy  the  procedure  is 
proposed,  the  introduction  of  which,  more  than  half  a  century  ago, 
put  such  an  effective  end  to  similar  confusion  in  England.  In  Massa- 
chusetts this  approved  method  has  already  been  introduced  to  a  cer- 
tain extent. 


280  THE    CONSTITUTIOXAL    AND    GENERAL    LAW 

provisions  cited  as  to  internal  improvements  that  this 
was  more  or  less  consciously  the  intention  of  the  framers 
of  the  state  constitutions.  In  this  they  have  found 
themselves  on  the  whole  in  accord  with  the  character  of 
the  actual  development  of  the  relations  of  life  in  the 
United  States  up  to  the  present  time.  Americans  — 
viewed  from  the  stand-point  of  the  most  highly  civilized 
states  of  Europe  —  are  still  obliged  to  apply  the  greatest 
part  of  their  strength  in  working  out  of  the  rough  and 
in  laying  broad  and  deep  the  foundations  of  a  civilized 
state  of  the  highest  order.  They  have  not  the  surplus  of 
time,  of  intellect  and  of  capital  needed  to  extend  the 
state's  activity  as  far  and  place  it  on  as  sure  a  footing  as 
in  the  oldest  civilized  states  of  Europe.  Hitherto,  too,  they 
have  had  no  occasion  to  give  up  the  fundamental  idea  of 
their  policy,  for  the  result  has  proved  that  the  peculiar 
problems  of  civilization,  with  which  they  have  been 
brought  face  to  face,  will  be  soonest  and  best  solved  by 
the  state's  retiring  into  the  back-ground.  In  that  event, 
the  organization  of  society  and  its  organic  work  result  in 
the  freest  possible  action ;  and  in  society  the  initiative 
and  power  of  the  individual  is  given  the  widest  scope. 
The  duties  of  the  state  are  much  more  limited,  and  there- 
fore general  law  has  not  only  a  different  but  a  much 
smaller  field;  but  the  (strictly  speaking)  constitutional- 
law  side  of  general  law  is  far  more  developed  than  in 
any  nation  on  the  European  continent.  Even  the  lan- 
guage shows  this.  It  contains  no  word  that  full}^  corre- 
sponds to  our  German  idea  of  general  law.  It  is  there- 
fore scarcely  surprising,  that  —  at  least  as  far  as  my 
knowledge  extends  — there  is  no  work  which  treats  of 
general  law  as  we  would  understand  this  in  Europe.  All 
the  books  worth  consideration  treat  only  of  constitutional 
law  or  particular  parts  of  it.     The}^  simply  touch  here 


OF   THE    SEPARATE    STATES.  281 

and  there  upon  those  points  of  general  law  which  are  not 
in  the  narrower  sense  of  the  word  constitutional.  This 
and  also  the  great  scarcity  of  monographs  on  this  part 
of  general  law  indicate,  in  fact,  that  there  is  no  proper 
interest  in  such  questions.  But  this  is  partly  explained 
by  the  fact  that  from  lack  of  material  many  chapters 
must  be  written  in  as  many  lines  as  pages  would  be  re- 
quired in  which  to  treat  the  subject  in  a  European  state. 
The  United  States  hav^e  immense,  and  some  of  the 
states  have  very  considerable,  expanses  of  public  lands. 
But  they  do  not  cultivate  them.  They  simply  sell  them. 
These  public  lands  hide  mineral  treasures  of  every  kind. 
But  the  state  does  not  mme  them.  It  simply  passes  laws 
as  to  how  private  perscftis  can  acquire  the  right  of  min- 
ing. As  to  how  the  mining  is  carried  on,  it  concerns  it- 
self little  or  not  at  all.  There  are  no  mining-officials 
just  as  there  is  no  administration  of  the  public  domain. 
Legislation  on  mining  is  practically  restricted  to  the  point 
named.  The  products  of  agriculture  are  so  enormous 
that  they  have  become  one  of  the  most  important  fac- 
tors in  the  world's  economy,  but  agriculture  is  so  far  out- 
side the  domain  of  the  federal  government  that  it  can  do 
little  more  than  gather  statistics  about  it.'  The  separate 
states  on  the  whole  adhere  to  the  principle  that  the 
farmer,  like  the  shoe-maker  and  tailor,  must  find  out  for 
himself  what   is  good  for  him.^    There  is  a  series  of 

1  It  seems,  therefore,  foolish  to  try  at  the  present  time  (January, 
1885)  to  create  an  agricultural  department  at  Washington. 

'^  Some  attempts  have  been  made  to  promote  the  improvement  and 
development  of  natural  resources  by  state  aid.  Thus,  for  instance, 
the  constitution  of  Maryland  provides  that  a  "superintendent  of 
labor  and  agriculture"  shall  be  elected  by  the  people  to  serve  for  four 
years  and  leaves  it  to  the  legislature  to  determine  whether  the  office 
shall  continue  to  exist.  His  chief  duties  are  to  be  to  "  supervise  all 
the  state  inspectors  of  agricultural  products  and  fertilizers  "  and  to 


2S2  THE    CONSTITUTIONAL    AND    GENERAL    LAVt' 

questions  in  which  the  general  good  imperiously  and  ur- 
ii'entlv  demands  the  interference  of  the  state  (for  instance 
in  the  management  of  forests)  to  lead  public  opinion  to 
such  a  point  that  it  will  allow  or  demand  the  setting 
aside  of  the  doctrine  of  laisser  faire.  With  absolutely 
criminal  laxness  all  energetic  measures  to  prevent  the 
forest  fires  caused  by  carelessness,  which  annually  destroy 
millions  of  property,  are  still  neglected.  And  although 
de-foresting  has  already  become  a  public  calamity  and 
danger  of  terrible  magnitude,  nothing  has  yet  been  done 
to  prevent  it  except  offering  rewards  of  different  kinds  for 
tree  planting.^  Neither  the  United  States  nor  the  states, 
therefore,  have  taken  any  especial  care  about  natural 
products.    As  far  as  trade  is  concerned,  the  federal  govern- 

"  enquire  into  the  undeveloped  resources  of  wealth  of  the  state  of 
Maryland,  more  especially  concerning  those  within  the  limits  of  the 
Chesapeake  Bay  and  its  tributaries,  which  belong  to  the  state,  and 
suggest  such  plans  as  may  be  calculated  to  render  them  available  as 
sources  of  revenue."  His  duties,  moreover,  embrace  those  of  the 
former  commissioner  of  immigration  and  the  immigration  agent. 
(Many  states  have  officials  who  are  charged  with  the  advancement 
of  immigration  and  everything  connected  therewith.)  In  Alabama, 
the  constitution  of  1868  created  a  bureau  of  industrial  resources  with 
similar  but  still  more  com2:)rehensive  duties.  Even  wliere  the  consti- 
tutions provide  nothing  of  this  kind,  something  has  S(jmetimes  been 
done  by  legislation  here  and  there.  The  federal  government  does  a 
great  deal  for  the  discovery  and  improvement  of  natural  resources 
by  its  very  exact  geological  surveys.  These  show  in  detail  all  other 
particulars  about  the  districts  examined.  Even  the  preservation  of 
the  wealth  of  fish  in  the  ocean  and  in  the  lakes  has  been  the  cai-e  of 
the  fedei'al  government.  The  act  of  February  9,  1871,  created  a  com- 
missioner of  fish  and  fisheries  for  the  study  of  the  questions  involved. 
1  In  this  respect  the  federal  government  does  more  than  tlie  indi- 
vidual states.  If  a  man  plants  trees  in  a  certain  way  for  eight  years 
upon  ten  out  of  one  hundred  and  sixty  acres,  and  at  the  end  of  the 
eight  years  has  at  least  six  hundred  and  seventy-five  vigorous  trees 
on  each  of  the  ten  acres,  he  becomes  the  owner  of  the  entire  tract. 


OF   THE    SEPARATE    STATES.  283 

ment  comes  to  the  front,  for  it  has  to  regulate  foreign 
and  inter-state  commerce.  Since  it  has  not  hitherto  deemed 
it  necessary  to  have  a  special  minister  of  commerce,  the 
states,  of  course,  have  felt  much  less  need  of  entrusting 
special  officers  with  the  care  of  commercial  interests. 
Industry  is  very  greatly  influenced  by  federal  tariff  legis- 
lation, but  industries  as  such  lie  outside  the  jurisdiction 
of  the  federal  government.  Factory-laws  and  business 
legislation  are  matters  for  the  separate  states,  which,  so 
far  as  I  know,  have  given  them  so  little  attention  that 
they  can  scarcely  be  called  the  care  and  province  of  the 
state.'  Of  the  many-sided  social-political  problems  so 
vigorously  agitated  in  Germany  at  present,  the  only  one, 
so  far  as  I  am  informed,  which  has  played  any  part  in 
state  or  federal  legislation,  is  the  question  of  the  legal  or 
normal  day  of  labor.  In  what  states  and  in  what  way 
the  question  of  child-labor  in  factories  has  been  regulated 
by  law,  I  am  unable  to  say ;  for  the  laws  of  all  the  thirty- 
eight  states  are  not  at  my  disposal.  At  least  some  of 
the  states  have  put  certain  limits  on  individual  freedom 
in  this  respect.  This  is  evident  from  the  general  laws 
relating  to  attendance  at  school.  The  school  system  and 
ecclesiastical  affairs  will,  however,  be  discussed  later  in 
special  paragraphs.  Here  it  need  only  be  said  that  the 
state's  interference  with  these,  in  comparison  with  what 
all  the  European  states  do,  is  also  very  slight.  The  bu- 
reau of  education  at  Washington  must  confine  itself,  on 
grounds  of  constitutional  law,  to  collecting  statistical 
and  other  materials,  elaborating  them  in  a  useful  way, 
and  bringing  them  to  the  knowledge  of  the  people;  and 
even  in  the  individual  states  a  "  minister  of  public  in- 


1  This  may  not  be  entirely  true  of  all  the  states,  especially  the 
North  Atlantic  states. 


284  THE    COXSTITUTIOXAL    AND    GENERAL    LAW 

struction  "  would  be  a  luxury.  A ''Kultus-minister  " — 
a  minister  of  worship  —  is  simply  a  non-existent  thing- 
for  the  United  States  and  for  the  separate  states.  There 
is  no  field  in  the  sei)arate  states  even  for  a  minister  in 
charge  of  the  channels  of  public  intercourse.  The  post 
is  controlled  by  the  nation,  and  railroads  and  telegraphs 
with  few  exceptions  are  purely  private  undertakings. 
''  Public  works  "  these  certainly  are,  but  in  general  they 
play  such  a  subordinate  part  that  even  where  there  is  a 
board  of  public  works,  its  duties  are  often  assigned  to 
other  higher  public  officials  as  secondary  work.  Public 
benevolent  institutions,  hospitals,  blind  asylums,  deaf- 
and-dumb  asylums,  houses  of  correction  for  neglected 
children  and  juvenile  offenders,  poor-houses,  etc.,  are  sup- 
ported by  all  the  states.  In  the  new  and  sparsely  settled 
states,  of  course  everything  desirable  in  this  direction  is 
not,  and  cannot,  be  done  at  once.  But  even  in  most  of 
the  older  states  the  public  care  for  these  interests  does 
not  go  as  far  and  is  not  as  systematic  as  in  the  most 
highly  developed  nations  of  Europe.  This  is  partly  be- 
cause even  these  older  states  are  still  in  jirocess  of  dev^el- 
opment,  but  in  a  great  measure  also  because  private  char- 
ity relieves  the  state  of  these  as  well  as  of  many  other 
burdens  to  an  extent  which  would  be  strange  in  Europe. 
The  fact  that  the  states  are  almost  all  still  in  the  process 
of  formation,  as  well  as  the  more  intense  and  compre- 
hensive independent  action  of  various  organizations  for 
public  purposes  within  the  states,  bring  about  the  result 
that  the  entire  state  administrative  apparatus,  in  organi- 
zation and  in  efficiency,  has  crystallized,  far  less  than  in 
Europe,  into  fixed,  systematic  and  thoroughly  constituted 
forms.  The  'ddniinistrat'iv ej^e/'sonnel  is  much  more  change- 
ful and  therefore  the  administration  does  not  possess  the 
same  stability.     Although  this  is  fraught  with  manifold 


OF   THE   SEPARATE    STATES.  285 

evils,  3'et  these  evils  are  far  less  numerous  and  important 
than  an  European  observer  would  suppose.  This  is 
partly  because  the  administration  has  much  more  limited 
tasks,  and  partly  because  the  people  have  for  generations 
undergone  a  schooling  in  self-administration  and  self- 
government  which  the  people  of  continental  Europe  have 
never  had.  If  the  general  law  of  America  has  much 
less  extent  than  that  of  Europe,  on  the  other  hand  the 
chapter  on  self-government  in  the  public  relations  of  the 
United  States  is  far  more  extensive. 

§  93.  The  Executive.  At  the  head  of  the  executive 
))ower  of  all  the  states  is  a"  governor,  elected  directly  by 
the  people.  All  male  inhabitants  are  eligible  as  gov- 
ernor, provided  they  are  of  full  age,  have  the  franchise, 
and  have  been  for  a  certain  time  citizens  of  the  United 
States  and  inhabitants  of  the  state.  This  time  is  very 
different  in  different  states.  The  right  of  re-election  is 
unlimited  in  most  states.  Where  this  is  not  the  case  the 
same  person  can  occupy  the  office,  at  most,  only  a  cer- 
tain number  of  years  within  a  fixed  period,  or  else  an 
immediate  re-election  is  prohibited.  If  the  popular  elec- 
tions result  in  no  choice,  the  legislature  elects  one  of  the 
two  candidates  who  received  the  highest  number  of  votes. 
The  particular  provisions  for  this  event  vary  greatly. 
The  term  of  office  is  from  one  to  four  years.  In  about 
half  the  states  it  is  four,  and  in  the  majority  of  the  re- 
mainder two  years.  If  by  death,  removal  from  office  or 
sickness  a  vacancy  occurs  in  the  gubernatorial  chair,  the 
lieutenant-governor,  elected  by  the  people  at  the  same 
time  as  the  governor  and  for  the  same  period,  exercises 
the  functions  of  governor.*  After  the  lieutenant-gov- 
ernor, the  president  of  the  senate  and  then  the  speaker 

1  Impeachment  is  common  to  all  the  states.  In  all  essential  mat- 
ters, the  procedure  follows  the  prototype  of  impeachment  under  the 


2S6  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

of  the  assembly  replaces  the  governor.  A  minority  of 
the  states  have  no  lieutenant-governor.  In  these,  the 
president  of  the  senate  generally  takes  the  place  first,  but 
sometimes  the  secretary  of  state  does  so. 

The  duties  and  rights  of  the  governor  correspond  on 
the  whole  to  those  of  the  president  of  the  United  States, 
but  in  sundry  respects  his  authorit}^  is  much  less.  His 
first  and  most  s:eneral  dutv  is  to  take  care  that  the  laws 
are  executed.  He  represents,  further,  the  state  exter- 
nally, es})ecially  in  relation  to  the  other  states.  He  influ- 
ences legislation  in  the  same  way  as  the  president  does. 
In  his  messages,  in  which  he  makes  a  report  to  the  legis- 
lature of  the  condition  of  the  state,  he  also  suggests  the 
enactment  of  such  laws  as  seem  necessary  or  expedient, 
but  he  can  make  no  formal  proposal  of  a  law.  All  bills 
require  his  assent.  If  he  does  not  approve  them,  they 
must  be  adopted  b}'  a  very  large  majority  in  both  houses 
in  order  to  become  laws  nevertheless.  As  a  rule,  a  two- 
thirds  majority  is  required,  sometimes  two-thirds  not 
onh'  of  those  present,  but  of   the  whole  membership.' 

federal  constitution.  The  assembly  is  prosecutor,  the  senate  judge. 
A  two-thirds  majority  is  required  for  conviction.  Its  consequence  is 
the  loss  of  office.  It  is  noteworthy  that  some  of  the  constitutions 
expressly  forbid  the  impeached  official's  acting  in  his  official  capacity 
during  the  trial.     In  others  this  provision  is  restricted  to  the  judges. 

The  lieutenant-governor,  as  long  as  he  does  not  exercise  the  func- 
tions of  governor,  is  ex  officio  president  of  the  senate.  He  can  vote 
only  in  case  of  a  tie. 

1  The  "  system  of  checks  and  balances,"  in  which  Americans  rightly 
see  one  of  the  most  substantial  guaranties  of  the  preservation  of  a 
rational  rule  of  liberty,  has  found  application,  in  some  few  constitu- 
tions, in  relation  to  this  question,  either  not  at  all  or  only  to  a  very 
limited  extent.  Either  the  governor  has  no  veto  at  all  or  else  a  sim- 
ple majoritN'  of  the  members-elect  of  both  houses  suffices  to  make  a 
bill  law  over  the  veto.  It  is,  however,  significant  that  these  provis- 
ions are  found  as  a  rule  in  some  of  the  older  constitutions.     The  dom- 


OF  THE  SEPARATE  STATES.  287 

Moreover,  the  governors  of  some  states  have  this  gni3bt  ad- 
vantage over  the  president,  that  they  can  refuse  to  approve 
separate  parts  of  an  appropriation  bill,  and  yet  approve 
it  as  a  whole,^  If  the  governor  considers  it  necessary, 
he  can  call  an  extraordinary  session  of  the  legislature. 
He  is  commander-in-chief  of  the  militia,  when  they  are 
not  employed  in  the  service  of  the  United  States.  The 
constitutions  of  several  states,  however,  expressl}''  provide 
that  he  must  get  the  consent  of  the  legislature  before 
personally  taking  command  of  them  and  assuming  the 
immediate  leadership.  Besides  this,  his  right  to  appoint 
the  militia  officers  is  more  or  less  restricted,  Not  only 
do  his  appointments  usually  require  conjfirmation  by  the 
senate,  but  the  right  of  appointment  is  limited  in  many 
cases  to  the  higher  ranks,  sometimes  indeed  to  the  high- 
est. In  some  states  the  highest  officers  are  elected  by  the 
legislature,  and  these  appoint  the  others,  while  the  non- 
commissioned officers  are  elected  by  the  men.^  The  right 
of  pardon  possessed  by  the  governor  is  also,  as  a  rule,  a 
very  limited  one.  Sometimes  he  can  use  it  only  with  the 
co-operation  of  other  high  officials,^  and  more  often  he 
must  give  the  legislature  an  exact  report  and  state  the  rea- 

inant  tend(?ncy  is  undoubtedly  the  conservative  one.  For  example, 
the  West  Virginia  constitution  of  1861  gave  the  governor  no  veto,  but 
it  was  granted  him  by  the  constitution  of  1872. 

1  This  important  provision  is  rapidly  finding  place  in  an  increasing 
number  of  constitutions. 

2  All  able-bodied  citizens  from  eighteen  (or  twenty-one)  years  of  age 
to  forty-five  are  usually  liable  to  serve  in  the  militia.  Many  consti- 
tutions permit  persons  conscientiously  opposed  to  carrying  arms  to 
escape  by  paying  a  fixed  sum.  These  moneys  are  often  assigned  to 
the  school  fund.  In  the  Oregon  constitution  of  1857,  the  absolution 
is  restricted  to  times  of  peace. 

3 For  example,  tlie  so-called  "council,"  an  institution  that  has 
proved  itself  of  so  little  worth  that  it  is  found  in  none  of  the  younger 
states,  and  older  ones  in  which  it  formerly  existed  have  abolished  it. 


2S8  thp:  coxstitutioxal  and  general  law 

sons  for  tlie  exorcise  of  bis  power.  The  greatest  distinc- 
tion between  the  authority  of  a  governor  and  that  of  the 
president  is  in  i*egard  to  the  right  of  appointment.  Even 
comparativelv  speaking,  the  number  of  offices  to  be  filled 
bv  executive  appointment  is  much  less  in  a  state  than  in 
the  Union.  Tlie  highest  state  officials,  who  take  the 
place,  more  or  less,  of  ministers,  are  not  appointed  at  all. 
This  is  of  the  <rreatest  sioiiificance.  Thev  are  the  ad- 
visers  of  the  governor,  for  he  is  expressly  authorized  to 
demand  written  opinions  from  them  on  all  questions  in- 
volved in  tlieir  duties.  They  are,  however,  as  a  rule,  not 
only  deliberative  organs  of  the  executive  power  committed 
to  the  governor,  but  they  have,  under  the  constitution, 
an  independent  share  in  the  supreme  executive  power. 
Some  constitutions  expressly  declare  that  a  "  governor 
and"  such  and  such  officials  shall  constitute  "the  execu- 
tive department."  This  is  why,  at  the  beginning  of  this 
paragraph,  I  could  onh^  say  that  at  the  head  of  the  execu- 
tive power  of  all  the  states  there  is  a  governor.  And 
even  where  it  is  not  expressly  stated  that  other  officials 
have  an  independent  share  of  the  executive  power,  it  is 
nevertheless  the  case  in  fact,  because  the  other  higher 
officials  —  sometimes  all,  and  sometimes  at  least  some  of 
them — are  given  their  offices  without  any  co-operation 
by  the  governor,  direct  or  indirect.  As  a  rule  they  are 
elected  by  the  people,  but  sometimes  by  the  legislature. 
When  some  are  appointed  and  some  elected,  the  attorne}'- 
general  is  usually  among  those  appointed.  In  the  sepa- 
rate states,  therefore,  much  less  than  in  the  federal 
administration,  is  there  a  cabinet  in  the  European  sense 
of  the  word.  And  in  the  states,  in  ordinary  speech,  a 
cabinet  is  never  heard  of.'     The  executive  in  most  of  the 

1  The  Florida  constitution  of  1868,  under  which  all  the  officers  in 
question  are  ai)pointed  by  the  governor  with  the  consent  of  the  sen- 


OF   THE   SEPARATE   STATES.  289 

states  is  not  a  unit.  This  bars  parliamentary  government 
in  them  to  even  a  greater  extent  than  in  the  Union.  The 
governor  of  Virginia,  according  to  the  constitution  of 
1850,  was  more  dependent  upon  the  legislature  in  this 
respect  than  the  governor  of  an}'  other  state.  For 
his  term  of  office  was  four  years,  and  the  higher  state 
officials  were  elected  by  the  legislature  for  only  two 
years.  The  observation  just  made  applies  to  Virginia, 
however,  in  spite  of  this,  just  as  unconditionally  as  it  does 
to  all  other  states.  The  occasional  majority  of  the  legis- 
lature can  confide  a  very  considerable  part  of  the  execu- 
tive power  to  persons  in  full  political  accord  with  it,  but 
the  greater  portion  is  still  vested  in  the  governor.  So  far 
as  the  constitution  makes  him  the  bearer  of  the  executive 
power,  it  gives  him  the  position  of  a  factor  of  the  govern- 
ment co-ordinate  with  the  legislature,  such  as  the  federal 
constitution  gives  the  president.  It  is  still  more  evi- 
dent from  the  Indiana  constitution  of  1851,  that  the  high- 
ate,  is  an  exception,  for  it  expressly  designates  them  as  "  a  cabinet  of 
administrative  officers."  A  quite  peculiar  organism  was  created  by 
the  North  Carolina  constitution  of  1868.  Although  the  particular 
officers  are  elected  by  the  people,  art.  III.,  §  14  (executive  depart- 
ment), provides:  "  The  secretary  of  state,  auditor,  treasurer,  superin- 
tendent of  public  works  and  superintendent  of  public  instruction, 
shall  constitute  ex  officio  the  councU  of  the  state,  who  shall  advise 
the  governor  in  the  execution  of  his  office,  and  three  of  whom  shall 
constitute  a  quorum ;  their  advice  and  proceedings  in  this  capacity 
shall  be  entered  in  a  journal  to  be  kept  for  this  purpose  exclusively,  and 
signed  by  the  members  present,  from  any  part  of  which  any  member 
may  enter  his  dissent ;  and  such  journal  shall  be  placed  before  the 
general  assembly  when  called  for  by  either  house."  A  council  of  state, 
elected  by  the  people,  whose  individual  members  are  party  organs  of 
the  highest  executive  officer,  and  which.ls,  as  a  whole,  partly  a  pseudo- 
cabinet  and  partly  an  agent  of  the  legislature,  by  which  the  political 
acts  and  omissions  of  the  governor,  as  well  as  of  the  pseudo-cabinet 
itself,  are  in  a  way  subjected  to  permanent  police  supervision,  is  a 
lK)litical  bastard,  that  ought  indeed  to  be  the  only  one  of  its  kind. 
19 


290  THE    CONSTITUTIONAL    AND   GENERAL    LAW 

est  state  officials  are  not  ministers,  much  less  as  a  whole 
a  cabinet,  with  which  the  governor  is  to  rule  in  a  parlia- 
mentary way.  Under  it  the  secretary  of  state,  auditor  and 
treasurer  are  elected  by  the  people  for  two  years,  while 
the  governor  is  elected  for  four  years.  Other  constitu- 
tions, too,  fix  different  terms  for  the  treasurer  and  for  the 
governor.  If  the  treasurer  were  a  minister,  this  would 
be  an  inexplicable  anomaly.  But  not  only  as  to  the 
treasurer,  but  as  to  all  the  others  who  with  and  under  the 
governor  constitute  the  executive  department,  the  polit- 
ical side  of  the  office  is  relegated  to  the  back-ground. 
This  is  true  even  of  the  secretary  of  state,  for  in  spite  of 
his  high-sounding  title,  he  is  simply  chief  clerk  and  cus- 
todian of  the  state  seal.  But  if  these  officials  are  some- 
times not  simply,  and  often  not  even  chiefly,  organs  of 
the  governor,  they  are  fundamentally  officials  only  in  the 
more  limited  sense  of  the  word.  It  is  only  the  governor- 
ship which  bears  a  sharply  defined  political  character. 
This  is  the  natural  result  of  the  fact  that  the  executive  is 
granted  only  such  an  indirect  and  restricted  share  in  leg- 
islation, and  of  the  fact  that  legislation  itself  has  only  a 
relatively  narrow  field  of  operations,  and  this  practically 
outside  of  politics.  The  jurisdiction  of  the  federal  gov- 
ernment is  so  wide,  and  the  state  legislature  is  <  within  the 
sphere  of  action  left  to  the  central  powei'sof  the  states  by 
the  high  development  of  self-government;  in  the  verv 
nature  of  things  so  much  the  dominant  factor  in  a  demo- 
cratic  republic,'    that   the   separate   states  have   wiseh' 

1  This  is  sharply  emphasized  by  the  provision  in  several  constitu- 
tions, that  officials  —  even  judges  —  on  demand  of  a  two-thirds  major- 
ity of  the  legislature  shall  be  removed  from  office  by  the  governor. 
As  a  rule,  certain  definite  gi-ievances  must  form  the  ba.sis  for  such  a 
demand.  At  this  point,  I  may  mention  that  the  prin(,ii)les  of  civil 
service  reform  are  daily  gaining  ground,  that  is,  that  ofiires  without 
political  significance  are  filled  by  appointment,  are  gradually  losing 


OF   THE   SEPARATE    STATES.  2'Jl 

renounced  the  complex  apparatus  of  ministers  and  minis- 
tries. The  number  of  the  officials  who  with  the  governor 
constitute  the  executive  department,  viz.,  i.  e.,  advisers 
of  the  executive  and  executive  organs,  is  different  in  the 
different  states.  Even  in  their  names  there  is  variety.  Be- 
sides, or  in  place  of,  those  already  mentioned,  some  states 
have  a  comptroller-general,  a  solicitor-general  and  a  sur- 
veyor-general. 

§  94.  The  Courts.  The  organization  of  the  judicial 
system  presents  so  many  differences,  and  even  where 
these  are  slig-ht,  the  names  of  the  courts  are  often  so  dif- 
ferent,  that  a  general  characterization  in  a  few  sentences 
is  impossible,  unless  the  discussion  is  restricted  to  that 
which  is  common  to  the  judicial  systems  of  all  civilized 
states  in  modern  times.  Two  points  must,  however,  be 
presented,  because  in  them  the  judicial  system  of  the 
several  states  is  substantially  different  from  that  of  the 
United  States.  Although  it  has  never  yet  been  thought 
that  the  provision  of  the  federal  constitution,  for  the  ap- 
pointment of  all  federal  judges  "  during  good  behavior," 
should  be  complained  of  as  unwise,  yet  nearly  all  the 
states  have  wholly  abandoned  this  principle.  The  judi- 
cial term  is  only  for  a  fixed  number  of  years,  and  often 
by  no  means  for  many  years.  The  term  of  office  varies 
very  much  in  the   different  states.     The  general  rule, 

their  former  character  of  party  booty  —  spoils.  Whether  the  United 
States  will  ever  have  as  firm  an  official  tenure  as  prevails  in  Europe 
is  nevertheless,  to  say  the  least,  verj'  doubtful.  They  are  still  very 
far  from  it.  How  deep  the  roots  of  the  conviction  that  "  rotation  in 
office  "  is  a  democratic  principle,  or,  indeed,  a  necessary  requirement 
of  a  free  state,  have  penetrated,  can  be  infeiTed  from,  for  example, 
the  facts  that  the  Mississippi  constitution  of  1868  provided  that  no 
official  should  be  elected  or  appointed  to  serve  "  during  good  behav- 
ior," and  that  the  Oregon  constitution  of  1857  actually  forbade  the 
creation  by  law  of  an  office  with  a  term  of  more  than  four  years. 


'2d'2  THE    COXSTITUTIOXAL    AND   GENERAL    LAW 

howevor,  is,  that  it  is  longer  as  the  court  is  higher.  AYheii 
several  judges  sit  in  a  court,  as  a  rule  no  integral  re- 
newal of  the  court  takes  place.  In  addition  to  the  lim- 
itation last  noted,  the  principle  of  irreniovabihty  is 
generally  recognized.  But  the  judges,  like  other  officials, 
are  subject  to  impeachment.  But  it  is  evident  that 
Americans  have  not  been  blind  to  the  dangers  involved 
in  yielding  too  much,  on  this  very  point,  to  the  demo- 
cratic tendency  to  make  everything  fluid  and  nothing 
lixed.  In  another  direction,  in  turn,  the  '*  democratic 
principle  "  has  made  a  wide  breach  in  the  old  traditions 
and  steadily  widened  it.  True,  the  judges  are  still  ap- 
pointed, in  several  states,  by  the  governor,  but  election 
has  become  the  rule.  In  some  states  the  legislature 
elects,  but  in  a  much  greater  number,  the  people.  The 
constitutions  place  no  express  restrictions  upon  eligibility 
to  the  judicial  office,  and  in  spite  of  some  unfortunate 
experiences  the  states  in  which  judges  are  elected  by  the 
people  believe  that  they  have  no  less  capable  or  less  pure 
judges  than  the  others.  There  are  no  signs  of  a  reaction. 
The  attacks  of  the  opposition  have  become,  moreover, 
much  less  frequent  and  much  less  fierce. 

§  95.  CoxsTiTUTioxAL  Amexdmexts.  "With  the  unex- 
ampled external  development  of  the  United  States,  there 
has  gone  hand  in  hand  a  progressive  democratization  of 
their  institutions.  Xevertheless,  the  conservative  basis 
of  the  character  of  the  American  people,  derived  from 
England,  has  remained  in  force;  —  how  much  so  appears 
clearly  in  the  provisions  which,  in  a  certain  sense,  must  be 
designated  as  the  most  important  of  every  constitution, — 
the  provisions  for  amending  the  constitution.  Amend- 
ments are  not  made  easily  in  any  state.  And  in  some 
states  they  are  rendered  so  difficult,  that  it  may  be  said 
that  it  is  almost  absolutely  certain  that  a  constitution  can 


OF   THE    SEPARATE    STATES.  293 

be  amended  only  when  the  people,  after  mature  reflec- 
tion, have  become  convinced  that  they  wish  the  change 
and  w^hy  they  wish  it.     But  this  is  noticeably  true  only 
when  isolated  amendments  are  in  question.     The  guar- 
anties provided  are  much  weaker  when  a  general  revision 
is  undertaken.     The  reason  for  this  is  that  such  a  general 
revision  is  always  made  by  a  convention  elected  ad  hoc^ 
and  such  a  convention,  as  has  been  already  shown,  rep- 
resents in  a  much  greater  degree  than  the  legislature,  ac- 
cording to  the  prevalent  opinion,  the  sovereign  w^ill  of 
the  people,  and  —  thus  the  unspoken  argument  proceeds  — 
consequently  also  reflects  much  more  the  wisdom  of  the 
people.     And  this  opinion  is  not  entirely  incorrect,  in- 
deed, even  on  the  latter  point,  for  the  people  are  wont  to 
lay  much  more  stress  on  the  election  of  a  convention 
than  on  the  frequent  and  ever  recurring  legislative  elec- 
tions, so  that  men  of  fitting  character,  ability  and  judg- 
ment obtain  decisive  influence  and  not  persons  who  have 
won  a  position  in  politics  simply  by  their  dexterity  in 
guiding  and  using  the  party  machine.     Moreover,  a  gen- 
eral  revision  of  the  constitution  is  such   an  important 
undertaking,  that  it  will  not  be  attempted  if  there  are 
not  actually  urgent  decisive  reasons  for  it.     And  if  this 
be  the  case,  then  all  the  important  questions  have  long 
beforehand  been  thoroughly  discussed,  so  that  on  the 
one   hand  the  convention  knows   w^hat  public  opinion 
is,  and  on  the  other  the  people   cannot  come  to   vote 
upon  the  propositions  of  the  convention  without  a  full 
consideration  of  their  nature  and  extent.     In  the  consti- 
tutions  of  some  of  the  states,  indeed,   the  democratic 
fundamental  principle,  that  the  constitution  must  corre- 
spond to  the  will  of  the  people,  reaches  rather  a  drastic 
expression  in  the  provision  that  at  fixed  periods  (every 
twenty  years)  the  question  must  be  submitted  to  the  peo-. 


29i  THE    COXSTITUTIONAL   AND    GENERAL    LAW 

pie,  whether  or  no  there  shall  be  a  convention.  As  a 
rule  the  people  must  always  decide  this,  although  it  is 
left  to  the  legislature  to  determine  whether  and  when  the 
question  shall  be  submitted.  The  certainty,  indeed,  of  a 
decision  by  the  })eople,  after  the  expiration  of  a  fixed 
space  of  time,  and  quite  independent  of  the  will  of  the 
legislature,  as  to  whether  a  general  revision  of  the  funda- 
mental law  shall  take  place,  may  also  tend  to  make  the 
people  more  inclined  to  give  the  constitution  an  "honest 
trial''  for  a  sufficient  time,  and  to  turn  coldly  from  dem- 
agogic agitation  for  constant  criticism  and  change.  The 
provisions  of  all  the  constitutions  as  to  general  revisions  ' 
admit  of  the  expectation  that,  if  no  extraordinary  state 
of  affairs  exists,  no  convention  will  be  called  without 
urgent  occasion,  in  a  lightsome  spirit  of  innovation ; 
that  a  convention  will  undertake  its  work  in  the  full  con- 
sciousness of  its  exalted  responsibilities  with  great  care- 
fulness, cool  reflection  and  .sound  judgment;  and,  finally, 
that  the  ])eople  in  its  decision  upon  the  results  of  this 
work  will  be  guided,  not  by  momentary  impulse,  but  by 
calm  consideration  of  facts.  Experience  has  sulliciently 
proven  this,  but  it  has  also  sometimes  shown  that,  under 
certain  circumstances,  passion  and  demagogic  agitation 
can  triumph  over  sober  thought  and  justice.^     Without 

'  It  has  ali'eady  been  mentioned  that  all  the  constitutions  do  not 
contain  detailed  provisions  as  to  the  holding  of  conventions. 

- 1  recall  the  California  constitution  of  1879,  sometimes  called  the 
"  sand-lot  constitution."  This  name  was  given  it,  because  it  was 
formed  and  adopted  under  the  influence  of  an  agitation  which  an 
ignorant  demagogue  of  very  ordinary  kind  brouglit  about  by  his 
popular  assemblages  on  the  sand  lots  of  San  Francisco.  It  was  a 
campaign  of  the  lower  classes  of  society,  in  the  first  place  against  the 
Cliinese,  and  to  a  certain  degree  also  against  capital.  And  even 
thougii  the  programme  of  ttie  more  radical  leaders  was  not  carried 
out,  they  nevertheless  bore  away  no  insignificant  victory. 


OF   THE   SEPARATE    STATES.  295 

wishing  to  decide  whether  the  holding  of  conv^entions  for 
a  general  revision  of  the  constitution  or  the  adoption  of 
their  propositions  by  the  people  should  be  made  more 
difficult  and  how  this  can  best  be  brought  about,  1  must 
note  with  praise  the  fact  that  many  constitutions  in  their 
provisions  about  single  amendments  take  double  and 
treble  precautions  against  all  dangers  of  this  kind.  On 
the  other  hand,  it  is  unquestionably  a  disadvantage  if  — 
as,  for  example,  the  constitutions  of  Kentucky  of  1850, 
and  of  Nebraska  of  1867,  provide  —  an  amendment  can 
be  made  only  by  a  convention.' 

The  initiative  as  to  isolated  changes  and  additional  ar- 
ticles belongs  to  the  legislature.  The  proposed  amend- 
ment must,  however,  not  only  be  agreed  to  by  both 
houses,  but  in  nearly  half  the  states,  a  simple  majority 
of  the  members-elect  is  not  sufficient;  a  majority  of 
three-fifths  or  two-thirds  is  required.  In  a  minority  of 
the  states  the  proposal  is  then  at  once  submitted  to  the 
people  by  its  publication  for  a  certtiin  time  in  a  fixed 
number  of  papers,  and  at  the  next  general  election  the 
people  vote  for  or  against  it.  In  most  of  the  states,  how- 
ever, an  opportunity  is  given  to  the  people  to  express  an 
indirect  opinion,  because  they  can  let  the  proposal  influ- 
ence, so  far  as  they  see  fit,  their  choice  of  members  of 
the  next  legislature.  The  latter  must  also  vote  on  the 
proposition,  and  only  when  it  has  adopted  it  by  the  re- 
quired majority  is  the  matter  submitted  to  the  people. 
In  popular  votes,  almost  without  exception,  a  simple  ma- 
jority suffices  for  adoption.     Exceedingly  odd  are  the 

1  Of  the  obligation  of  submitting  to  the  people  the  conclusions  of 
the  convention,  nothing  is  said  in  these  constitutions.  The  new  Ne- 
braska constitution  of  1875  allows  an  amendment  by  a  three-fifths 
vote  in  each  house  of  the  legislature  and  a  majority  of  the  popular 
vote.  It  also  requires  a  constitutional  convention  to  submit  its  work 
to  the  people. 


296  THE    CONSTITUTIONAL    AND    GENP:EAL    LAW 

])ro visions  of  the  South  Carolina  and  Alabama  constitu- 
tions of  1S»JS.  and  the  Texas  constitution  of  1869,  which 
put  the  popuhir  vote  between  the  decisions  of  the  two 
leg'ishiturcs.'  Of  course,  the  question  comes  before  the 
second  legiskiture  only  when  the  propositions  of  the  for- 
mer have  been  adopted  by  the  people.  However  this 
metliod  is  to  be  regarded  on  political  grounds,  it  is  never- 
theless difficult  to  make  it  accord  with  the  principle  of 
popular  sovereignty.  Several  constitutions  leave  to  legis- 
lation the  task  of  ])roviding  for  the  details  as  to  when 
and  how  the  proposed  amendments  are  to  be  submitted 
to  the  decision  of  the  people.  A  defeated  projxjsal,  ac- 
cording to  several  constitutions,  cannot  be  renewed  for  a 
certain  time.  An  amendment  of  the  Vermont  constitu- 
tion, adopted  in  ISTO,  grants  exclusively  to  the  senate  the 
initiative  as  to  proposed  amendments;  even  the  senate 
can  use  the  privilege  only  every  tenth  year;  two-thirds 
of  its  members  must  be  in  favor  of  the  proposal,  while 
in  the  house  of  representatives  a  simple  majority  suffices; 
in  the  next  legislature,  which  must  vote  upon  the  pro- 
posal, only  a  majority  in  each  house  is  required.  The 
constitution  of  Delaware  is  entirely  isolated  in  requiring, 
after  the  proposal  of  amendments  by  the  legislature,  their 
approval  by  the  governor. 

g  06.  The  Tax  System.  (A)  General  direct  property 
taxes.  Numerous  and  self-evident  as  the  differences  in 
the  tax-systems  of  the  states  are  in  detail,  there  is  never- 
theless a  sufficient  agreement  in  principle  to  make  a  gen- 
eral characterization  of  them  possible.  In  the  discussion 
of  the  like  provisions  of  the  federal  constitution,  it  was 
shown  that  the  right  of  taxation  of  the  federal  govern- 

1  AlaVjaina  in  1875,  and  Texas  in  1876,  each  adojrted  a  new  constitu- 
tion. Botli  of  these  constitutions  allow  amendments  by  the  vote  of 
one  legislature  and  ratitication  at  the  polls. 


OF   THE   SEPARATE   STATES.  297 

ment  and  of  the  several  states  was  concurrent,  that  is, 
they  can  levy  taxes  upon  the  same  objects.  Independent  of 
particulars  already  cited  and  of  no  substantial  material  im- 
portance, such  as  the  public  property,  the  administration  of 
justice,  the  salaries  of  officials,  etc.,  the  only  exception  to 
this  rule,  unfavorable  to  the  states,  is  imported  goods.  As 
the  federal  government  alone  regulates  foreign  commerce, 
so  it  alone  can  collect  duties  on  imports.  This  one  excep- 
tion, however,  marks  a  distinction  of  taxation  between 
the  Union  and  the  separate  states  which  may  almost  be 
designated  as  a  radical  one.  The  federal  government 
has  always  met  its  financial  needs  mainly  by  duties.  In 
comparison  with  them,  the  only  important  taxes  in  ordi- 
nary times  are  those  on  tobacco  and  intoxicating  liquors 
(whisky).  Land  sales,  indeed,  in  the  course  of  years, 
have  brought  in  considerable  sums,  and  also  in  the  domain 
of  internal  revenue  the  Union  has  opened  many  more 
sources  of  income.  But  its  financial  system  is  character- 
ized as  to  revenue  by  these  three  factors  and  particularly 
in  fact  by  the  duties.  Direct  taxes  have  been  levied  by 
the  federal  government  only  in  exceptional  cases.  The 
backbone  of  the  financial  administration  of  the  separate 
states,  on  the  other  hand,  is  direct  taxation,  to  which  per- 
sonal and  real  property  is  liable.  The  general  taxes  are 
based  on  assessments  made  by  assessors  or  appraisers. 
Some  constitutions  fix  a  time  after  which  all  personal 
property  must  be  newly  assessed,  but  this,  as  a  rule,  is  left 
to  legislation.  Several  constitutions  also  contain  the 
provision  that  the  valuation  or  assessment  must  corre- 
spond with  the  selling-price.  As  a  rule,  however,  it  is,  as 
a  matter  of  fact,  lower.  The  assessment  returns  there- 
fore do  not  present  an  entirely  correct  portraiture  of  the 
actual  prosperity  of  the  people.  If  the  entire  Union  is 
taken  into  view,  this  is  manifestly  impossible,  because  by 


208  Tur;  co^'stitutioxal  and  gi:x]:hal  law 

law  or  custom  the  valuations  in  the  different  states  are 
made  accoi-ding  to  a  more  or  less  varying  standard,  quite 
iiidei)endent  of  the  fact  that  in  spite  of  the  express  com- 
mand of  the  constitutions,  even  with  the  best  intentions,  a 
])erfectly  uniform  assessment  cannot  bo  made.  The  rates 
at  whicli  the  different  sorts  of  property  are  taxed  as  well 
as  the  methods  of  taxation  vary  in  manifold  ways,  and 
change  even  in  the  same  state.  The  constitutions  gener- 
all}'  limit  tliemselves  to  the  establisliment  of  the  principle 
that  taxation  shall  be  equal.  It  is,  howevei',  ex])ressly 
stated  that  all  property  is  taxable,  or  that  all  property 
shall  be  taxed  according  to  its  actual  value,  or  that  no 
kind  of  proj)erty  shall  be  burdened  witli  a  higher  tax- 
rate  than  any  other  kind,  etc.  Sometimes  it  is  especially 
provided  tliat  all  corporations  for  ])urposes  of  gain,  as 
well  as  all  investments  of  capital  in  paper  securities 
of  everv  kind,  shall  be  taxed.  Some  constitutions,  how- 
ever, make  property  taxable  only  when  it  exceeds  a  cer- 
tain minimum.  This  minimum  is  rather  small.  On  the 
contrary,  no  state  extends  the  "  homestead"  privilege  so 
as  to  bar  the  collection  of  taxes  due  the  state.^     There 

1  The  view  is  still  continually  met  that  there  is  an  American  home- 
stead law.  But  in  fact  the  federal  law  bearing  this  name  relates,  as 
already  shown,  only  to  the  granting  of  a  homestead  of  one  hundred 
and  sixty  acres  or  less  of  the  federal  lands  for  a  small  entrance  or 
])atent  fee.  The  homestead  privilege,  on  the  contrary,  is  based  on 
state  law  or  on  the  provisions  of  the  state  constitutions.  It  is  there- 
fore very  diiferent  in  the  different  states  and  it  never  has  the  scope 
often  ascribeil  to  it  in  Europe.  The  privilege  is,  in  brief,  this:  That 
l)roperty,  real  and  personal,  up  to  a  certain  value  is  exempt  from 
seizure  or  execution  for  certain  debts,  but  only  for  certain  debts. 
Taxes,  ]jurchase-money  mortgages,  debts  for  buildings  erected  on 
the  homestead  or  other  work  done  on  it,  are  excepted.  What  a  com- 
l)licated  matter  this  is  may  be  inferred  from  the  fact  that  the  work 
of  8.  D.  Tiiompson,  A  Treatise  on  Homestead  and  Exemption  Laws, 
tiSTB,  contains  over  eight  hundred  i);iges.  S«^e,  also,  J.  H.  Smith, 
Law  of  Homesteads  and  Exemj)tions,  San  Fi-ancisco,  1875. 


OF   THE    SEPARATE   STATES.  299 

are,  however,  further  and  more  significant  exceptions  to 
the  general  taxation  of  property.  They  are  obligatory  ac- 
cording to  some  constitutions ;  others  only  permit  the  legis- 
latures to  make  them.  Cemeteries,  public  school  build- 
ings, charitable  institutions,  buildings  exclusively  devoted 
to  divine  services,  and  public  property  exclusively  sub- 
serving public  purposes,  are  most  frequently  exempt  from 
taxation.  Some  constitutions  go  much  further.  The 
exemption  is  extended  to  all  literary  and  scientific  insti- 
tutions, to  all  property  serving  religious  purposes,  to  all 
public  property,  even  that  of  the  counties  and  municipal- 
ities, to  clothing,  furniture,  tools,  instruments  and  books 
up  to  a  certain  value,  etc. 

(B)  Capitation  tax.  The  ideal  of  tax  legislation,  in  all 
modern  civili/x'd  states,  must  be  to  have  each  individual 
bear  the  public  burdens  in  the  exact  proportion  that  his 
ability  to  pay  taxes  bears  to  the  tax-paying  ability  of  the 
entire  population.  The  realization  of  this  ideal  is  impos- 
sible. "  It  can  be  approached  only  by  combining  different 
taxes  in  such  a  way  as  to  make  their  defects  balance  each 
other.  An  equal  tax,  judged  from  the  stand-point  of 
absolute  justice,  can  never  be  proportionate,  because 
equally  valuable  property  of  the  same  kind'  is  by  no 
means  necessarily  owned  by  persons  equally  able  to  pay 
taxes.  Legislation,  however,  cannot  from  the  nature  of 
things  take  into  consideration  the  particular  incidence  of 
taxation  on  a  single  piece  of  property,  and  the  equal  taxa- 
tion of  equally  valuable  property  of  the  same  kind  is 
always  less  inequitable  than  the  levying  of  an  equal 
direct  tax  upon  all  individuals  merely  as  parts  of  the 
population.  It  is  only  here  and  there  that  this  point  has 
been  given  such  attention  that  the  levying  of  such  a  tax 
has  been  unconditionally  prohibited.  Some  constitu- 
tions —  but  a,  very  small  number  —  direct  its  levy.   About 


300  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

lialf  the  constitutions  do  not  touch  the  question  at  all 
and  give  the  legislatures  full  and  free  pla3\  The  rest 
occupy  a  middle  ground,  corresponding  with  the  ])ublic 
oj)inion  or  the  actual  situation  of  affairs  in  those  states 
the  constitutions  of  which  are  silent  on  the  subject.  The 
legislatures  are  permitted  to  levy  a  poll  or  cajiitation 
tax,  but  it  is  admitted  that  in  general  such  a  tax  is 
grievous  and  oppressive,  and  therefore  the  right  is  given 
A'ery  narrow  limits.  The  maximum  rate  allowaljle  is 
almost  always  fixed;  and  this  —  considering  American 
monetary  conditions  —  is  always  a  small  one.  usually  si  or 
81.50.  The  tax  is  further  restricted  to  male  inhabitants 
or  citizens  of  at  least  twentv-one  years  of  age.  And, 
finally,  the  revenue  is  generally  made  applicable  to  pre- 
scribed purposes, —  in  fact,  as  a  rule,  exclusively  to  the 
public  schools,  but  occasionally  also  to  charitable  institu- 
tions. This  prescription  of  purposes  shows  why  the  tax 
is  regarded  as  admissible,  although  its  principle  is  gener- 
ally condemned.  The  poorer  classes  are  most  interested 
in  a  general  free  common  school  system,  and  the  less 
they  have  to  pay  direct  property  taxes,  the  more  equita- 
ble, yes,  the  more  desirable,  it  is  that  they  shall  contribute 
something  to  the  maintenance  of  these  common  schools. 
For  it  is  even  more  important  in  democratic  free  states 
than  in  any  other  to  keep  alive  in  the  consciousness  of 
every  citizen  with  full  political  rights,  by  making  him 
pa}'  some  tax,  that  rights  become  privileges  if  not  counter- 
poised by  corresponding  duties.  The  weight  of  these  con- 
siderations in  causing  the  levy  of  capitation  taxes  appears 
quite  clearly  where  the  right  of  voting  is  made  depend- 
ent on  the  payment  of  a  poll  tax. 

(Cj  Other  taxes.  Income  taxes  are  mentioned  only  in  a 
very  few  constitutions.  It  does  not  follow  that  they  are 
not  allowable  in  other  states,  but  as  the  constitutions  for 


OF   THE   SEPARATE   STATES.  301 

the  most  part  contain  rather  exhaustive  provisions  for  tax 
legislation,  this  indicates  that  this  method  of  taxation 
does  not  enjoy  in  the  United  States  the  favor  it  is  more 
and  more  receiving  among  European  statesmen  and  land- 
lords. Indeed,  it  will  not  be  entirely  unjustifiable  if  the 
question  is  decided  the  other  way  in  America.  When 
the  economic  and  all  other  relations  have  not  yet  attained 
a  certain  stability  a  general  income  tax  causes  many  sorts 
of  difficulties  and  inconveniences,  which  exist  either  not 
at  all  or  in  a  very  much  more  limited  degree  in  relation 
to  other  taxes.  Americans  are  aware  that  in  many  re- 
spects incomes  are  the  best  measures  of  taxation.  They 
know,  too,  how  the  revenues  are  increased  if  taxation 
falls  not  only  upon  property,  but  also  income.  Both 
reasons  will  probably  bring  about  the  introduction  of  the 
income  tax,  sooner  or  later,  in  all  the  states  of  the  Union ; 
but  many  a  state  will  consent  to  this  only  when  the  pub- 
lic needs  cannot  be  met  without  a  considerable  increase 
of  the  ordinary  taxes.  However  this  may  be,  in  fact,  the 
different  kinds  of  "  specific  taxes,"  next  to  the  general 
direct  property  tax,  play  at  present  the  most  important 
part  in  the  financial  system  of  the  several  states.  Among 
these  specific  taxes,  the  business  or  occupation  taxes  de- 
serve the  first  mention.  The  Louisiana  constitution  of 
1868  directly  states  that  these  are  intended  as  income 
taxes.^  Even  where  this  is  not  expressly  stated,  the  con- 
stitutions sometimes  take  care  that  the  taxes  shall  not  be 
the  same  for  all  the  different  trades,  but  shall  bear  a  cer- 
tain proportion  to  the  extent  or  proceeds  of  the  business 

1  After  the  general  authorization  to  levy  such  taxes,  this  clause  fol- 
lows :  "  All  tax  on  income  shall  be  pro  rata  on  the  amount  of  income 
or  business  done."  The  authority  to  levy  an  income  tax  is  not  un- 
bounded. It  is  granted,  but  only  as  to  "all  persons  pursuing  any 
occupation,  ti-ade  or  calling."    Title  "VT.,  art.  118. 


302  THE    CONSTITUTIONAL    AND   GENERAL    LAW 

carried  on.  When,  for  instance,  the  Alabama  constitu- 
tion of  1S6S  obliges  the  legislature  to  impose  a  special 
tax  upon  all  railroads,  insurance  and  banl^ing  companies, 
etc..  for  the  benefit  of  the  school  fund,  it  is  difticult  to 
assume  that  it  intends  to  tax  a  little  local  railroad  a  few 
miles  long  as  much  as  railroads  which  might  be  regarded 
as  the  arteries  of  trade.  And  this  is  true  even  if  laws 
based  upon  another  interpretation  of  the  paragraph  can- 
not be  declared  certainh'  unconstitutional.  The  Illinois 
constitution  of  1870,  however,  enumerates,  in  immediate 
connection  with  businesses  of  the  kind  just  mentioned, 
hawkers,  luicksters,  jugglers,  grocers,  hotel  and  saloon 
keepers,  etc.  This  is  difficult  to  harmonize  with  the  views 
stated  if  it  be  not  assumed  that  the  framers  of  the  constitu- 
tion intended  to  leave  it  to  the  discretion  of  the  legislature 
in  what  cases  the  specific  tax  shall  be  a  fixed  one,  and  in 
what  cases  the  tax  shall  be  determined  bv  the  extent  of 
the  business.  The  latter  is  never  the  case  in  a  license 
tax.  The  Virginia  constitution  of  ISTO  calls  the  specific 
taxes  which  are  to  be  levied  licenses.  There  is,  there- 
fore, no  doubt  that  under  it  only  the  particuhirly  enumer- 
ated occupations  can  be  burdened  with  a  specific  tax.' 
In  turn  the  question  might  be  raised  whether  this  is  also 
true  in  cases  where  only  the  expression  "  to  tax  "  is  used. 
For  it  may  be  disputed  whether  licenses  can  be  regarded 
as  taxes  in  the  strict  sense  of  the  word.  As,  however,  in 
the  cases  of  hawkers,  peddlers,  jugglers,  ccc,  only  licenses 
can  bo  intended,  this  argument  would  be  somewhat 
forced.  Ikit,  although  it  is  regarded  as  inadmissible, 
naturally  the  importance  of  specific  taxes  as  a  source  of 
revenue  is  always  more  or  less  impaired  by  such  an  enu- 

1  The  list,  indeefl,  contains  a  clause  giving  to  the  legislature  the 
widest  scope.  It  says,  in  conclusion:  "  And  all  otber business  which 
cannot  be  readied  by  the  ad  valorem  system." 


OF   THE    SEPARATE    STATES.  303 

meration.^  In  order  to  avoid  this,  other  constitutions, 
such,  for  instance,  as  that  of  North  Carolina  of  1868,  have 
empowered  the  legislature  to  tax  all  trades,  professions 
and  franchises.  This  power,  to  my  knowledge,  has  hith- 
erto never  been  carried  out  in  its  full  extent  in  any  state. 
I  do  not  believe  that  any  state  has  ever  overstepped  or 
even  reached  the  limits  which  the  Texas  constitution  of 
1879  fixed  by  adding  to  the  general  formula  of  authori- 
zation the  clause  that,  by  "  occupation,"  agriculture  and 
"  mechanical  pursuits "  should  not  be  understood.  On 
the  other  hand,  no  constitution  which  mentions  specific 
taxes  has  drawn  such  narrow  limits  to  them  as  the  Ar- 
kansas constitution  of  1868,  which  commands  the  legisla- 
ture "  to  tax  all  privileges,  pursuits  and  occupations  that 
are  of  no  real  use  to  society,"  and  forbids  the  taxation  of 
all  others.  How  the  laws  of  Arkansas  have  illustrated 
this  remarkable  provision  in  detail  I  am  unable  to  say. 
I  have  treated  this  whole  question  in  connection  with  the 
constitutions,  partly  because  it  seemed  to  possess  not  a 
little  interest  j^e/*  «<?,  partly  because  it  sufficiently  appears 
from  the  constitutional  provisions  cited  how  different  the 
conditions  of  the  states  are  in  this  respect,  while  the 

1  The  constitution  of  Illinois  further  sets  forth :  "  The  specification 
of  the  objects  and  subjects  of  taxation  shall  not  deprive  the  general 
assembly  of  the  |K>wer  to  require  other  subjects  or  objects  to  be  taxed, 
in  such  manner  as  may  be  consistent  with  the  principles  of  taxation 
fixed  in  this  constitution."  Even  if  the  states,  in  applying  the  doctrine 
that  constitutions  should  establish  only  the  principles  of  tax-legisla- 
tion, have  not  kept  within  the  same  limits,  yet  this  doctrine,  as  a 
matter  of  fact,  forms  the  foundation  of  the  provisions  in  question  in 
all  the  constitutions.  So  the  principle  already  stateil  applies  here, 
that  the  legislatures  may  do  whatever  they  are  not  forbidden  to  do. 
It  cannot  be  concluded,  for  example,  because  many  constitutions  con- 
tain no  special  provisions  relating  to  specific  taxes,  that  tlie  actual  sys- 
tems under  them  must  be  substantially  different  from  those  in  the 
states  with  constitutions  which  do  contain  such  provisions. 


304:  THE    COXSTITUTIOXAL    AND    GEXERAL    LAW 

fundamental  character  of  their  tax  systems  is  one  and  the 
same. 

§  97.  ScnooL  System.^  Advancement  thereof  hij  the  Fed- 
eral Gocernnierd.  The  democratic  federal  republic's  ca- 
pacity for  existence  has  not  diminished,  but  has  rather 
greatly  increased,  although  in  three  generations  the  nar- 
row settlements  along  the  coast  of  the  thirteen  Atlantic 
states  liave  developed  into  the  giant  nation  extending  from 
ocean  to  ocean,  and  the  population  has  increased  more  than 
foui'teen-fold.  This  is  in  great  part  due  to  the  fact  that 
close  upon  the  heel  of  the  irrepressible  pioneer,  penetrating 
the  western  wilderness,  came  the  school.  The  federal  gov- 
ernment was  no  sliglit  contributor  to  the  possibility  of  this. 
Xeither  the  articles  of  confederation  nor  the  constitution 
of  1789  granted  the  central  power  any  authority  what- 
ever in  regard  to  a  system  of  instruction  in  the  states,  but 
early  in  the  day  it  saw  that  the  care  and  development  of 
the  school  system  was  a  national  interest  of  vital  impor- 
tance. And  it  found  ways  and  means  to  aid  it  greatly 
without  becoming  guilty  of  the  slightest  usurpation.  The 
old  congress  deserves  the  renown  of  having,  at  a  time 
when  the  overwhelming  centrifugal  tendency  had  already 
practically  deprived  it  of  all  real  power,  taken  the  path 
Avhich  the  federal  government  has  since  steadily  trod,  to 
its  honor  and  to  the  good  of  the  country.  Even  in  the 
act  of  1785,  organizing  the  territory  lying  northwest  of 
the  Ohio,  the  sixteenth  section  —  a  square  mile  —  of  every 
township  was  set  aside  for  the  support  of  common  schools. 
In  the  famous  "ordinance  of  1787,"  the  definitive  act  of 
organization  of  the  Northwest  Territory,  this  provision 
was  renewed  and  the  grant  to  each  state  formed  out  of 
the  territory  of  two  Avhole  townships,  "for  a  university," 

IF.  Burke:  Laic  of  PuUic  Schools,  N.  Y.,  1880. 


OF  THE  SEPAEATE  STATES.  305 

was  added.'  A  law  of  September  4,  1841,  granted  a 
number  of  states  five  hundred  thousand  acres  apiece  (in- 
clusive of  the  grants  made  earlier),  and  provided  that 
every  new  state  should  receive  a  like  grant.  "  Internal 
improvements"  were  usually  the  nominal  object  of  this 
gift,  but  as  a  matter  of  fact,  a  large  amount  of  the  pro- 
ceeds went  to  the  schools.  With  the  law  of  Ausrust  14, 
1848,  for  the  organization  of  the  territory  of  Oregon,  con- 
gress began  to  give  to  the  school-fund  of  the  new  terri- 
tories the  thirty-sixth  as  well  as  the  sixteenth  section  of 
each  township.  In  the  midst  of  the  civil  war,  July  2, 
1862,  congress  passed  a  law  giving  to  each  state  land 
enough  to  endow  at  least  one  "  college,"  in  which  "  such 
branches  of  learning  as  are  related  to  agriculture  and  the 
mechanic  arts  "  should  be  especially  taught.  The  size  of 
the  gift  was  made  dependent  on  the  population.  It  was 
at  least  thirty  thousand  acres  for  each  senator  and  repre- 
sentative of  the  state,  under  the  census  of  1860.  Besides 
this,  the  school-funds  of  certain  states  got  a  share  of  the 
surplus  in  the  federal  treasury  distributed  in  1836  —  some 
$15,000,000  —  and  also  part  of  the  proceeds  of  the  sale  of 
more  than  sixty -two  million  acres  of  "  gwamp  and  over- 
flowed lands,"  donated  the  states  by  the  federal  govern- 
ment in  1849,  1850  and  1860. 

General  Characterization.  The  original  states  of  the 
Union  have  thus  shared  in  the  land  grants  for  schools 
only  to  a  relatively  small  degree.  However  great  these 
grants  have  been,  of  course  they  could  not,  even  in  the 
new  states,  be  more  than  a  contribution  towards  the 
amount  needed  for  the  system  of  instruction.  Even 
in  these  new  states,  most  of  the  money  needed  must  be 

1 G.  W.  Knight,  History  and  Management  of  Federal  Land  Grants 
in  the  Northwest  Territory,  N.  Y.,  1885;  in  the  papers  of  the  Amer- 
ican Historical  Association. 
20 


30G  THE    CONSTITUTIONAL    AND    (iENERAL    LAW 

raised  by  taxes,  partly  state  and  partly  local.  As  to 
both  kinds  of  school-taxes,  the  regulations  of  the  thirtv- 
eight  states  differ  widely  in  both  form  and  substance. 
The  system  of  instruction  is  b\'  no  means  in  the  same 
stage  of  development  in  all  the  states,  and  divergent  views 
prevail  on  the  question  as  to  how  far  the  care  of  popular 
education  onght  to  be,  or  can  be,  recognized  as  an  im- 
mediate task  of  the  state.  And,  therefore,  the  size  of  the 
school-budget  —  whether  that  of  the  state  alone  or  that 
of  the  state  and  the  municipalities  together  —  varies 
greatly  7>6v'  capita.  As  a  rule  the  former  slave-states,  es- 
pecially the  planter-states,  are  more  or  less  in  arrear  in  this 
res]:)ect.  If  we  but  consider  that  at  the  outbreak  of  the 
civil  war  part  of  these  states  had  no  general  common 
school  system  and  that  the  slave-children  were  not  allowed 
to  be  educated,  we  must  cordially  recognize  the  progress 
they  have  made, —  and  made  despite  their  complete  eco- 
nomic ruin  and  despite  the  radical  social  revolution  of  the 
last  twenty  years.  Some  of  them,  indeed,  have  gone  so  far 
as  to  establish  in  their  constitutions  the  principle  of  com- 
pulsory attendance  at  school  or  rather  of  compulsory  edu- 
cation,—  a  principle  not  yet  adopted  by  many  northern 
and  western  states.  The  conclusion  must  not  be  drawn, 
however,  from  the  establishment  of  the  principle,  that  in 
these  particular  states  all  children  now  enjoy  instruction. 
In  the  southern  states,  the  actual  condition  of  affairs  makes 
it  in  many  ways  impossible  to  give  all  children  the  oppor- 
tunity of  an  education,  much  less  to  compel  them  to  take 
it.  Coinpulsor}"  education,  moreover,  has  not  succeeded 
liitherto  even  where  such  an  opportunity  has  been  offered 
every  child.  This  is  due  in  a  great  degree  to  the  fact 
that  public  opinion  has  not  yet  declared  itself  in  favor  of 
cora])ulsory  education  as  emphatically  as  it  has  demanded 
for  manv  vears  that  the  state,  in  connection  with  the 


OF  THE  SEPARATE  STATES.  307 

local  authorities,  should  see  to  it  that  every  child  had.  the 
chance  of  receiving  a  common  school  education,  free  of 
cost. 

Common  Schools.  The  demand  of  public  opinion  on 
the  whole  does  not  extend  further  than  these,  although 
there  are  everywhere  public  free  schools  of  a  higher 
grade.  Some  of  them  are  supported  by  the  municipali- 
ties ;  some  of  them  by  a  municipality  and  the  state  to- 
gether. The  expression  "common  schools"  as  a  rule 
means  only  the  elementary  or  primary  schools.  Common 
schools  of  a  higher  grade  are  called  grammar  or  high 
schools.  Nevertheless  there  is  no  '''American  common 
school  system,"  although  Americans  themselves  very  fre- 
quently use  this  expression.  Xot  only  are  there  different 
names  in  the  different  states,  but  the  same  names  some- 
times mean  more  or  less  different  things.  Each  state, 
however,  has  its  common  school  system,  bearing  here  or 
there  its  special  stamp.  A  general  characterization,  which 
should  give  a  very  correct  picture  of  the  organization  of 
the  school  system  of  each  state,  is-  therefore  impossible. 
The  following  statements  indicate  only  what  seems  to 
emerge  from  the  multiplicity  of  details  as  a  general 
type — modified  in  this  or  that  way,  sometimes  more  and 
sometimes  less. 

Organization  of  the  School  System.  The  ^tate  does 
not  support  the  common  schools,  but  it  contributes  a  con- 
siderable part  of  the  cost  of  their  support.  The  means 
placed  by  the  state  at  the  disposal  of  the  public  schools  — 
the  proceeds  of  taxes  directly  or  indirectly  levied  for 
school  purposes  and  the  interest  and  other  proceeds  of 
the  school  fund  —  are  distributed  according  to  fixed,  but 
not  always  the  same,  rules.  In  general  the  distribution  is 
based  either  wholly  or  in  part  upon  the  number  of  school 
children.    The  rich  communities,  therefore,  have  to  pay 


308  THE    COXSTITUTIOXAL    AND    GENERAL    LAW 

much  more  in  taxes  to  the  school  fund  of  the  state  than 
they  receive  from  it.  They  must  not  only  bear  the  ex- 
])enses  of  their  own  schools,  but  they  must  also  help  to 
support  the  schools  of  the  poorer  communities.  All  local 
boards,  however,  must  raise  part  of  the  cost  of  their 
schools  by  local  taxation.  In  fact,  they  are  not  always 
left  free  to  decide  how  heavily  they  will  burden  them- 
selves for  this  purpose.  Xo  maximum  is  set,  but  the  law 
prescribes  a  minimum,  by  fixing  what  proportion  the  local 
contribution  shall  bear  to  that  of  the  state.  As  far  as 
spending  the  moneys  is  concerned,  the  local  boards  have 
a  pretty  free  hand.  As  the  state  does  not  fully  support 
the  common  schools,  it  does  not  claim  their  sole  manage- 
ment. It  takes  in  hand  the  general  direction  and  super- 
intendence, but  does  not  Avithdraw  the  school  system 
from  the  domain  of  self-o:overnment.  The  hio^hest  school 
authority  in  most  states  is  a  board  of  education.  Its 
members  are  sometimes  elected  by  the  people  or  the  leg- 
islature; sometimes  appointed  by  the  governor;  some- 
times they  are  certain  officials  who  ex  officio  make  up  the 
board;  sometimes  they  are  chosen  by  a  combination,  in 
one  way  or  another,  of  the  different  methods.  The  im- 
mediate head  of  the  system  of  education  is  a  single  of- 
ficial, generally  called  superintendent  or  commissioner  of 
public  instruction.  lie  also  is  elected  in  the  one  or  the 
other  way  or  is  appointed  by  the  governor.  He  is  al- 
ways a  member  of  the  board  where  a  board  exists.  Be- 
sides this,  there  are  commissioners.  They  are  either  state 
or  county  officials,  but  in  either  case  are  usually  elected 
by  the  people.  The  immediate  management  of  the 
schools  is  left,  however,  to  the  local  school  boards,  school 
commissioners  or  trustees.  These  are  generally  elected 
by  the  voting  population  of  the  community.  They  en- 
gage and  discharge  the  teachers.     The  unit  in  the  organ- 


OF   THE    SEPARATE    STATES,  300 

ization  of  the  school  system  is  the  "  school  district "  or 
the  township.  The  district  system  has  lost  ground  of 
late  as  against  the  township  system,  because  experience 
has  shown  that  decentralization  has  many  dubious  results 
if  it  passes  beyond  certain  limits.  With  the  development 
of  the  system  of  public  instruction  the  tendency  towards 
somewhat  greater  centralization  has  gone  hand  in  hand. 
In  fact,  the  improvement  of  the  system  and  the  growth 
of  the  state's  control  and  direction  are  to  no  small  extent 
exactly  identical. 

Exclusion  of  Relujious  Instruction  in  the  Common 
Schools.  No  state  gives  the  churches  any  footing  what- 
ever in  the  common  schools.  Every  church  and  every 
congregation  is  left  to  take  such  care  as  it  sees  jfit 
of  the  religious  instruction  of  the  children  belonging  to 
it.  Such  instruction  is  usually  given  in  the  Sunday 
schools.  These  are  entirely  independent  of  the  state  as 
well  as  of  the  community.  Religious  exercises  in  the 
common  schools  are  restricted  to  the  reading  of  a  chapter 
in  the  Bible.  Even  this  has  been  done  away  with  here 
and  there,  because  the  Catholics  claimed  that  they  were 
wronged  by  the  use  of  a  Protestant  translation  of  the 
Bible ;  the  Jews  protested  against  the  use  of  the  New 
Testament,  and  the  Freethinkers  objected  to  everything 
which  professed  to  be  the  word  of  God  and  divine  revela- 
tion. These  claims,  protests  and  objections  have  been 
recognized  without  reservation  as  just  by  many  positive 
Christians.  Some  famous  Protestant  clergymen  were 
amonsr  the  earliest  and  most  earnest  advocates  of  the 
doctrine  that  religion,  so  far  as  it  took  the  shape  of 
dogma,  was  to  be  absolutely  excluded  from  the  common 
schools.  The  most  vigorous  impetus  given  to  the  attack 
against  the  former  practice  of  beginning  the  school  ses- 
sion with  more  or  less  prolonged  devotional  exercises  was 


310  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

due  to  the  Catholic  clergy.  Hitherto,  however,  the  re- 
sults have  been  diametrically  opposed  to  their  real  views. 
They  complained  of  a  Protestant  ti'anslation  of  the  Bible, 
but  when  Bible  reading  ceased  they  lamented  still  more 
the  banishment  of  God  from  the  schools,  and  demanded 
that  the  Catholics  be  given  their  share  of  the  school 
funds  so  that  they  could  care  for  the  instruction  of  their 
children  in  the  way  demanded  by  their  consciences  and 
their  religious  convictions.^  So  far  they  have  been  un- 
able to  carry  this  through  anywhere.  Its  ultimate  con- 
sequences would  be  the  distribution  of  the  whole  school 
fund  among  the  ditferent  churches  and  the  replacing  of 
the  complete  secularization  of  the  common  schools  with 
its  exact  o})posite.  But  the  battle  over  this  question  —  a 
question  which  reaches  the  deepest  roots  of  popular  gov- 
ernment in  America  —  is  by  no  means  ended.- 

Xonnal  Schijols.  It  was  only  in  relatively  recent  times 
that  the  states  began  to  make  any  effort  to  educate 
capable  common  school  teachers.  These  efforts  were  in- 
cidentally caused  by  Dr.  Julius,  whom  the  Prussian  gov- 
ernment had  sent  to  the  United  States  to  study  the  prison 
system.     Dr.  Cliarles  Brooks,  a  clergyman  of  Massachu- 

1  For  one  of  the  most  interesting  and  significant  episodes  of  this 
struggle  see  my  Coistitutioiial  Hhtory,  IV.,  91. 

-President  Grant,  in  his  message  of  December  7,  18T5,  recommended 
that  a  constitutional  amendment  should  be  submitted  to  the  states  for 
ratification,  "  inaking  it  the  duty  of  each  of  the  several  states  to  es- 
tablish and  forever  maintain  full  public  schools,  adequate  to  the  edu- 
cation of  all  the  children  in  rudimentarj'  branches,  within  their 
respective  limits,  irrespective  of  sex,  color,  birth-place  or  religion; 
forl>idding  the  teaching  in  said  schools  of  religious,  atheistic  or  pagan, 
tenets,  and  prohibiting  the  granting  of  any  school  fund  or  school 
taxes,  or  any  part  thereof,  either  by  legislative,  municipal  or  otlier 
authorit\',  for  the  benefit  or  in  aid,  directly  or  indirectly,  of  an}-  re- 
ligious sect  or  denomination,"  Congress  did  not  act  upon  the  recom- 
mendation. 


OF   THE    SEPiLKATE   STATES.  311 

setts,  was  so  much  interested  in  Dr.  Julius's  statements 
about  the  Prussian  teachers'  seminaries  that  he  forthwith 
made  himself  thoroughly  acquainted  with  these  insti- 
tutes, and  after  his  return  to  America  began  a  successful 
agitation  in  Massachusetts  for  their  imitation  there.  By 
and  by  other  states  followed  the  example  of  Massachu- 
setts, and  now  every  state  has  a  greater  or  less  number 
of  teachers'  seminaries.  They  are  usually  somewhat 
vaguely  called  normal  schools.  Only  a  very  small  part 
of  thenr  are  real  state  institutions.  Most  of  them  depend 
upon  the  municipalities.  These  have  displayed  a  splen- 
did activity  and  a  cheerful  self-sacrifice  in  this  respect,  as 
well  as  in  regard  to  the  entire  school  system.  Although 
the  number  of  these  institutes  grows  steadily  and  rap- 
idly, yet  they  by  no  meass  suffice  to  supply  the  great 
demand  for  teachers  of  the  lower  grades.  Under  the 
blessed  working  of  competitive  examination,  however, 
the  average  teacher  has  nevertheless  become  much  more 
capable  than  formerly,  when  "  school-keeping  "  was  the 
best  means  poor  half-grown  youths  had  to  earn  money 
enough  to  enter  upon  whatever  career  their  ambition 
dictated.  The  normal  schools  train  not  only  male  but 
female  teachers.^ 

High  Schools,  etc.  The  extent  of  the  support  given 
by  the  states  to  high  schools,  and  also  to  academies  and 
colleges,  is  very  varied.  The  organization  as  well  as  the 
work  of  these  schools  differ  so  much  that  they  often  have 
nothing  in  common  except  the  name.  During  the  sev- 
enties —  possibly  on  account  of  the  hard  times  —  a  cur- 
rent of  public  opinion  against  the  expensive  participation 
of  the  state  in  fostering  the  higher  education  seemed  to 

iThe  absolute  as  well  as  the  relative  number  of  female  teachers  is 
far  greater  in  the  United  States  than  in  any  European  nation  what- 
ever. 


312  TilE    CONSTITUTIONAL    AND    GENERAL    LAW 

gain  breadth  and  depth.  The  money  taken  from  the 
mass  of  the  people  —  so  the  argument  ran  -  should  be 
used  only  in  such  a  way  as  to  be  of  direct  advantage  to 
ithe  whole  people. 

Unictrisltles.  In  most  of  the  states  a  state  institution 
bears  the  name  of  university.  But  it  must  not  be  inferred 
from  the  name  that  the  institution  corresponds  with 
what  is  understood  in  Europe  by  a  universit}^  And  even 
among  themselves  they  differ  so  much  that  a  general 
characterization  is  practically  impossible.  Only  thus 
much  may  be  said,  that  they  are  throughout  a  mixture  of 
the  German  gymnasia,  reaUchule  of  a  high  grade,  indus- 
trial schools  of  different  kinds,  and  university,  but  that 
the  mixture  and  combination  differ  materially  in  the  dif- 
ferent cases.  Thus,  for  instance,  some  of  the  southern 
states,  which  first  considered  the  foundation  of  a  univer- 
sity after  the  close  of  the  war,  and  some  of  the  younger 
western  states,  have  contented  themselves  from  the  be- 
ginning with  a  very  modest  progj'ammc,  whereas  the 
state  university  of  Michigan,  at  Ann  Arbor,  in  the  num- 
ber of  subjects  of  instruction,  as  well  as  in  the  work 
done,  is  among  the  foremost  institutions  of  the  Union. 
Theology  is  excluded  from  all  state  universities.  The 
separate  religious  denominations  must  care  for  the  edu- 
cation of  the  clergy,  as  such.  The  state  does  not  concern 
itself  in  any  way  as  to  whether  they  do  so  or  how  they 
do  so,^ 

•  In  18S2  there  were  one  hundred  and  forty-five  theological  semi- 
naries, with  four  thousand  nine  hundred  and  twenty -one  students. 
The  Catliolic  church  led  them  all  with  twenty-one  seminaries  and 
one  thousand  one  hundred  and  four  students.  Next  came  the  Bap- 
tists, with  the  same  number  of  seminaries,  but  only  eight  hundred 
and  ninetj'-nine  students.  In  all,  twenty-five  different  religious  de- 
nominations support  seminaries.  It  is  evident  from  tliis  that  a  dis- 
tribution  of  the  school   fund   among  the  denominations   is  simjily 


OF   THE    SEPARATE   STATES.  313 

Although  they  do  not  come  within  the  theme  of  gen- 
eral law,  the  private  institutions  must  be  briefly  men- 
tioned, because  they  are  in  the  strictest  sense  of  the  word 
an  essential  integral  part  of  the  system  of  instruction. 
The  most  noted  institutions  of  learnini'  of  the  hisrhest 
grade  are  almost  wholly  private  institutions,  in  this  sense, 
that  they  are  aided  neither  by  the  state  nor  by  the  com- 
munities. Their  property  conies  from  legacies  and  gifts. 
The  foundation  of  their  scheme  of  instruction  is  the  col- 
legiate department,  in  which  the  lower  divisions  corre- 
spond to  the  higher  classes  of  our  gymnasia  or  7'ealschule^ 
and  even  the  highest  do  not  go  far  beyond  these.  Where 
other  than  academic  studies  are  pursued,  it  is  usual  to 
organize  separate  schools  —  medical  school,  law  school, 
etc.,  which  nevertheless  form  an  integral  part  of  the  whole 
institution.  If  the  institution  is  of  a  religious  character, 
it  occasionally  has  connected  with  it  a  theological  semi- 
nary. The  large  majority  of  the  colleges  of  the  second 
and  third  class  as  well  as  of  the  academies  are  private 
institutions  in  the  sense  stated.  Many  of  the  grammar 
and  high  schools  are  due  to  private  benevolence.  Indi- 
viduals spend  year  after  year  immense  sums  for  educa- 
tional purposes.  In  1872,  the  legacies  and  gifts  ran  up 
to  over  $11,000,000.  This  has  also  its  obverse  side.  The 
resources  of  education  are  not  concentrated ;  the  condi- 
tions of  the  donors  often  prevent  the  most  expedient  use 
of  the  money  given;  the  arrangements  are  too  dissimilar; 
and  the  results  are  too  disproportionate  and  often  very 
unsatisfactory.^     Apart  from  the  common  schools,  the 

impossible.    If  the  Catholic  church  ever  carries  through  its  demand, 
it  can  do  so  only  by  getting  a  special  i)rivilege  for  itself. 

I  This  is  evident  enough  from  the  fact  that  in  1882  there  were  no 
less  than  three  hundred  and  sixty-five  "  universities  "  and  "  colleges  " 
in  the  United  States. 


314:  TlIK    CONSTITUTIONAL    AND    GKNKKAL    LAV,' 

system  of  instruction  is  in  some  ways  almost  chaotic. 
As  far  as  colleges  and  high  schools  are  concerned,  the 
stage  of  development  of  the  central  European  states  has 
not  been  reached.^ 

^  OS.  Relations  of  Church  and  Statu.-  "  It  belongs 
to  American  liberty  to  separate  entirely  the  institution 
which  has  for  it  object  the  supjiort  and  diffusion  of  re- 
ligion from  the  ])olitical  government."  ^  The  constitutions 
of  all  the  states  proclaim  this  ])rinciple  in  one  form  or  an- 
other, and  they  ])ut  its  chief  consequences  in  the  shape 
of  express  prcjhibitions.  The  American  princijile  is  not 
general  tolei'ation,  but  absolute  religious  freedom.  This, 
according  to  American  ideas,  involves  the  complete  with- 
drawal of  religio-ecclosiastical  relations  as  such  from  the 
sphere  of  action  of  the  state  and  of  ]K)litical  organi- 
zations of  lower  grade.  The  Americans  are  mistaken  in 
their  frequent  assertion  that  this  principle  is  carried  out 
to  its  last  consequences  in  all  the  states,  but  the  differences 
are  few  and  as  a  rule  of  no  practical  importance. 

In  all  the  states,  the  constitutions  forbid  the  establish- 
ment of  a  state  church  or  any  distinction  in  favor  of  any 
religious  denomination.  If  any  advantage  ^vllatevcr  were 
given  one,  this  would  be  an  injury  to  the  others,  and  any 
injury  sulTered  on  account  of  religious  convictions  is  op- 

'  Compare,  besides  the  annual  reports  of  the  bureau  of  education 
and  Barnard's  American  Journal  of  Educafion:  Troscliel,  Volks- 
cliaralder  iind  Bildnngsaiistalten  der  NordanieriJcaner,  ISGT ;  Rigg, 
Nationcd  Education,  1873;  A  Statement  of  the  Thcor)/  of  Educcdion 
in  the  United  States  of  America,  1874;  F.  Adams,  The  Free  School 
Si/stem  of  tlie  United  States,  1875;  Oilman,  Education  in  America, 
177G-1.'^7(),  in  tlie  North  American  Revieii-,  1876. 

-  See  Cuolcy.  t'oiint.  Lim.,  467-478;  R.  K.  Tyler,  Arnericaii  Ecclesi- 
astical Lan-,  Alljany,  1866:  F.  Vinton,  American  Canon  Law,  N.  Y., 
1S70;  W.  Strong,  Relations  of  Civil  Law  to  Church  Politij,  N.  Y., 
187rK  S.  B.  Smith,  Ecclesiastical  Law,  2d  ed.,  N.  Y.,  1878. 

•'i  Lieber,  On  Civil  Libert  y  and  Self -Government,  99. 


OF   THE    SEPARATE   STATES.  315 

posed  to  the  principle  of  absolute  religious  freedom.  If 
this  is  true  in  relation  to  religious  organizations,  it  must 
manifestly  also  be  true  as  to  all  individuals.  States  are 
therefore  unfaithful  to  this  principle  if  their  constitutions 
make  the  right  to  hold  certain  or  all  public  offices  de- 
pendent upon  faith  in  a  higher  being,  in  a  future  life,  etc. 
Some  state  constitutions  do  this.  This  inconsequence  is 
either  not  recognized  or  else  is  regarded  as  justifiable,  for, 
as  far  as  the  Anglo-Americans  are  concerned,  there  is 
very  much  truth  in  Kapp's  assertion  that  religious  liberty 
is  understood  by  the  great  majority  to  mean  "  that  every 
one  has  indeed  the  liberty  to  profess  any  religion  but  not 
the  right  to  acknowledge  no  religion." '  All  such  pro- 
visions, however,  are  constantly  and  in  an  increasing 
ratio  disappearing  from  the  state  constitutions. 

Taxation  for  Religious  Purposes  is  forbidden.  Such 
taxes  cannot  be  levied  by  the  townships  and  counties  any 
more  than  by  the  state.^  Eeligion  is  an  entirely  private 
affair,  and  the  imposition  of  public  burdens  for  ])rivate 
affairs  is  inadmissible.  No  one  can  be  compelled  to  con- 
tribute to  the  cost  of  satisfying  the  religious  wants  of 
somebody  else.  Whoever  associates  himself  with  others 
for  such  purposes  and  so  voluntarily  assumes  material 

^Das  Verhdltniss  von  Staat  und  Kirche  in  der  Union.  Aus  und 
uher  Amerika,  II.,  48. 

2  For  an  exception,  see  Cooley,  Const.  Limit.,  468,  note  1.  I  give 
the  provision  of  tlie  Illinois  constitution  on  this  point  verbatim, 
because  it  may  be  regarded  as  typical:  "  Neitlier  the  general  as- 
sembly, nor  any  county,  city,  town,  township,  school  ilistrict  or  other 
public  corporation,  shall  ever  make  any  appropriation,  or  pay  from 
any  public  fund  wliatever  anything,  in  aid  of  any  cliurch  or  sectarian 
purpose,  or  to  help  support  or  sustain  any  school,  academy,  seminary, 
college,  university  or  other  literary  or  scientific  institution  controlled 
by  any  church  or  sectarian  denomination  whatever ;  nor  shall  any 
gi'ant  or  donation  of  land,  money  or  other  personal  projxn-ty  ever  be 
made  by  tlie  state  or  any  such  public  corporation  to  any  church  or 
for  any  sectarian  purpose."    Art.  VIII.,  sec.  1,  §  3. 


310  TUE    COXSTITL'TIOXAL    AND    GENERAL    LAW 

obligations  is  nevertheless,  of  course,  bound  to  meet  these 
oblio-ations.  Controversies  arising  from  this  may  be  de- 
cided by  the  ordinary  courts,  but  they  can  never  have  a 
general  law  character. 

The  states  are  forbidden  to  compel  participation  in  any 
religious  exercises  or  usages  Avhatsoever.  A  member  of 
a  religious  congregation  is  so  solely  because  he  wishes  to 
be,  and  he  can  cease  to  be  so  for  whatever  reason  and 
whenever  he  pleases.  On  the  other  hand,  the  state  has 
no  right  to  direct  religious  denominations  whom  the}" 
shall  admit  to  membership,  why  they  shall  exclude  from 
membership,  how  they  shall  arrange  their  church  rules, 
when  and  how  they  shall  impose  ecclesiastical  punish- 
ments, etc.  It  is  onlv  when  thev  invade  the  leiral  rights 
of  the  citizen  that  the  person  injured  can  seek  the  pro- 
tection of  the  courts.  The  churches,  as  religious  com- 
munities, have  unlimited  self-government,  but  they  can 
never,  by  appealing  to  their  articles  of  faith  or  church 
regulations,  justify  the  least  violation  of  what  the  state 
recognizes  as  a  right.  AYithout  detriment  to  their  abso- 
lute autonomy,  they  are  as  absolutely  subject  to  the  law 
as  any  stock  company  or  social  club. 

The  Free  Exercise  of  Religion  cannot  be  hindered  by 
the  states.  The  Chinaman  cannot  be  troubled  in  his 
temple  of  idolatry  any  more  than  the  Catholic  archbishop 
in  his  cathedral.  Xo  one  is  to  be  prevented  from  making 
the  craziest  religion  his  own  and  living  up  to  it  in  accord- 
ance with  the  dictates  of  his  conscience.  But  this  holds 
good  only  so  far  as  he  does  not  thus  come  into  conflict  with 
the  laws.  The  laws,  in  fact,  do  not  affect  religion,  but 
always  take  care  that  no  one,  in  the  name  of  religion, 
shall  actually  oppose  the  requirements  which  the  state, 
as  a  moral,  civilized  society,  may  and  must  make.*     He 

1  The  Illinois  constitution  provides :  "  But  the  liberty  of  conscience 
hereby  secured  shall  not  be  construed  to    .     .     .     excuse  acts  of 


OF   THE    SEPARATE    STATES.  317 

who  docs  this  encroaches  upon  the  legal  rights  of  others, 
and  indeed  in  this  case  upon  the  legal  rights  of  the  com- 
munity, whereas  the  constitutional  guarantee  of  religious 
freedom  is  to  him  only  a  guarantee  that  on  that  question 
neither  the  state  nor  any  one  else  shall  be  permitted  to 
encroach  upon  his  legal  rights. 

The  Free  Expression  and  Defense  of  Religious  Opin- 
ions by  word  or  pen  cannot  be  restricted  by  the  state.  This 
right,  also,  is  subject  to  the  restrictions  stated  in  the  pre- 
ceding section.  No  constitution  forbids  the  legislature 
to  prevent  the  circulation  of  immoral  writings  injurious 
to  public  morals.  In  some  states  this  is  made  its  express 
duty.  This  right  and  this  duty  cannot,  however,  be  set 
aside  because  lasciviousness  presents  herself  in  the  dra- 
pery of  religious  conviction.  The  exercise  of  the  right  is 
also  subject  to  the  further  restriction  that  it  shall  not  be 
so  abused  as  to  violate  the  legal  right  of  others  to  follow 
their  convictions. 

The  fundamental  principles  are  clear,  but  it  is  easy  to 
see  that  their  application  to  concrete  cases  must  involve 
many  and  many  kinds  of  difficulties.  Whether  the  great 
problem  of  the  relations  of  church  and  state  has  been 
more  satisfactorily  solved  in  the  United  States,  by  com- 
plete separation,  than  it  has  been  in  European  states,  by 
more  or  less  of  alliance,  is  not  a  matter  of  enquiry  here. 
But  a  presentation  of  American  general  law  must  point 
out  the  fact  that  the  American  solution  does  not,  as  most 
Americans  believe  and  assert,  absolutely  exclude  all  mis- 
understandings, etc.,  between  these  two  highest  points 
of  civilization.  And  even  were  that  the  case,  yet  the 
facts  to  be  stated  hereafter  show  even  more  clearly  than 
those  already  cited  that  the  highly  complex  development 

licentiousness,  or  justify  practices  inconsistent  with  the  peace  or 
safety  of  the  state."    Art.  II.,  sec.  1,  §  8. 


31S  THE    COXSTITUTIOXAL    AND    GEXEKAL    LAW 

of  the  relation  between  church  and  state  in  Europe — a 
development  which  has  gone  on  a  thousand  years  or 
nioi'e  —  makes  the  adoption  of  the  American  theory  in 
the  old  world  utterly  impossible. 

The  co-existence  of  absolute  legal  dominion  over  the 
churches,  and  of  their  complete  autonomy  as  organized 
religious  societies,  is  made  possible  by  the  fact  that  the 
state  does  not  know  them  as  self-contained,  complex 
powers  at  all.  Legislation  concerns  itself  only  with  in- 
dividual cono'reo'ations,  and  even  with  them  not  as  com- 
munities  of  one  faith,  but  only  as  cor))orations  which, 
under  the  laws,  can  acquire  property,  use  it  and  numage 
it.  The  state  does  not,  however,  ignore  the  two  impor- 
tant facts  that  these  are  corporations  for  religious  pur- 
poses, and  that  ever}'  congregation  belongs  to  a  sect. 
Church  rules,  church  laws,  even  doctrines  of  faith,  can 
be  enforced  by  the  courts,  and  may  control  judicial  de- 
cisions. The  courts  decide  only  questions  of  law,  but 
these  may  depend  upon  a  church  rule,  etc.  Without  re- 
gard to  the  reasonableness,  the  justice,  the  worth  or  the 
unworthiness  of  the  articles  of  faith  or  of  tlie  ordinances 
of  the  church,  they  are  treated  by  the  courts  as  facts 
from  which  legal  consequences  may  arise  for  those  who 
have  become  subject  to  them  by  voluntarily  becoming 
members  of  a  church.  The  church  authorities  can  bring 
no  questions  of  a  civil  nature  before  tlieir  forum,  and  the 
state  never  lends  them  its  strong  arm  except  in  questions 
of  civil  rights,  such  as  may  arise  under  the  rules  of  a  club 
as  well  as  under  the  ordinances  of  a  church.^     In  other 

1  The  leading  principles  ai'e  plainly  and  pointedly  sot  forth  by  J.  P. 
Thompson,  Kirche  und  Stoat  in  den  Vereinigten  Staafen  vonAmen'ka. 
He  says : 

"  Under  the  laws  of  the  United  States,  and  of  the  several  states  of 
the  Union,  each  cliurch  is  at  liberty  to  organize  itself  according  to 


OF   THE    SEPAKATE    STATES.  310 

cases,  however,  the  courts  have  recognized  tlie  right  of 
an  incorporated  congregation  to  retain  their  church  prop- 
erty, although  they  had  changed  their  faith. 

From  the  political  point  of  view,  the  opposite  side  of 
the  question  is  the  more  important.  The  state  takes 
account  of  both  these  facts,  by  seeking  to  shape  its  legis- 

its  own  model,  to  frame  its  own  laws,  to  raise  its  revenue  in  its  own 
way,  and  to  administer  its  own  discipline.  The  broad  principle  is 
that  a  church  is  a  voluntary  association ;  and  its  constitution,  laws 
and  canons  are  stipulations  between  the  parties,  defining  their  duties 
and  obligations.  The  civil  rights  of  the  member  are  still  protected 
by  the  civil  tribunals ;  but  civil  courts  will  not  interfere  to  prevent 
an  investigation  before  an  ecclesiastical  tribunal  of  a  voluntary  re- 
ligious association  when  proceeding  according  to  its  constitution, 
canons  or  rules,  and  when  the  subject-matter  or  person  is  within  its 
jurisdiction. 

"  Where  it  appears  that  a  local  church  and  the  rector  thereof  are 
members  of,  and  under  the  supervision  and  control  of,  a  general  and 
superior  church  organization,  to  whose  faith  and  discipline  they  have 
voluntarily  attached  themselves,  those  who  continue  to  arlhere  to  the 
faith  and  discipline  of  the  general  church  are  the  beneficiaries  for 
whose  use  the  trustees  hold  the  church  property,  although  they  are 
the  minority  of  the  local  church  organization. 

"  Where  the  proper  ecclesiastical  tribunals  have  obtained  jurisdic- 
tion, and  have  tried  and  passed  sentence  of  deposition  upon  an  al- 
leged offender,  civil  courts  not  only  recognize  the  validity  of,  but  give 
effect  to,  the  decisions  of  the  church  courts. 

"In  all  mattei-s  of  religious  faith  and  practice,  the  ecclesiastical 
courts,  iirovided  they  have  obtained  jurisdiction,  are  as  entirely  inde- 
pendent of  the  civil  tribunals  as  the  latter  are  of  the  former  upon  all 
questions  relating  to  property  interests. 

"  Neither  will  the  courts,  in  the  absence  of  acts  of  incorporation 
which  cliange  the  common  law,  permit  a  majority  of  the  members 
of  a  church  which  is  itself  connected  with  and  subject  to  the  juris- 
diction and  government  of  a  superior  church  judicatory  to  secede 
from  the  denomination  to  which  they  have  voluntarily  attached 
themselves,  and  take  with  them  the  church  property.  Such  an  act 
is  regarded  in  law  as  a  perversion  of  the  trust;  and  a  court  of  equity 
will  reach  forth  its  strong  arm,  and  prevent  it.  The  holders  of  the 
legal  title  ai'e  regarded  in  a  court  of  equity  as  holding  it  in  trust  for 


320  THE    CONSTITUTIONAL    AND    GENPJKAL    LAW 

lation  so  tliat  tlie  churches  cannot  easily  become  a  power 
dang-crous  to  it.  The  greatest  safeguard  h'es  in  tliis,  that 
the  whole  church  can  never  be  incorporated  in  a  state. 
Only  a  single  congregation  can  be.  It  may  therefore  be 
said  that  in  a  certain  sense  the  legal  idea  of  the  church 
is  inseparable  from  that  of  a  particular  building  devoted 
to  divine  worship.  The  mere  permanent  union  of  per- 
sons who  think  alike  on  religion  does  not  form  a  church. 
The  legal  formation  of  a  church  involves  the  creation  of 
a  cor})oration,  of  a  "  congregation,"  which  obtains  legal 
existence  by  this  incorporation.  The  congregation  em- 
braces all  those  who,  by  the  acceptance  of  their  contri- 
butions towards  the  common  costs,  have  been  admitted  in 
a  certain  way  as  business  partners.  What  a  single  con- 
grefi-ation  calls  the  "  church  "  is  the  closer  union  of  those 
Avhose  lives  show  a  livelier  participation  in,  and  fuller 
resignation  to,  the  common  ideal  interests.  The  church 
as  such  legally  exists  only  as  a  congregation.'  The 
method  and  conditions  of  incorporation  vary  in  the  dif- 
ferent states.  The  congregation  is  always  represented  in 
its  relations  to  the  state  and  the  outer  world  by  a  board 
of  trustees  which  must  consist  in  part  of  laymen.  This 
highW  important  provision  may,  indeed,  be  stripped  of 
all  significance.  In  Xew  York  the  Catholic  church  has 
been  able  to  arrange  matters  so  that  the  trustees  always 

the  maintenance  of  the  faith  and  worship  of  the  founders  of  the  or- 
ganization ;  and  any  diversion  of  it  into  another  use  is  so  far  a  breach 
of  trust  as  to  demand  the  interposition  of  the  court.  Tiiis  position 
is  sustained  by  many  cases,  English  and  American.''  See,  also,  Chase 
et  al.  vs.  Clieneij,  58  111.,  509.  In  other  cases,  however,  the  courts 
have  acknowledged  the  right  of  incorporated  churches  to  retain  their 
church  property  notwitlistanding  a  change  of  faith.  J.  P.  Thompson, 
Kirche  unci  Staat  in  den  Ver.  St.  von  Amerika,  73  et  seq. 

I  The  spiritual  head  of  the  congregation  is  the  minister.     He  is 
also  the  pastor  of  the  church. 


OF   THE    SEPAKATE   STATES.  321 

consist  of  the  archbishop,  the  bishop  of  the  diocese,  the 
vicar-general,  the  pastor  of  tlie  church,  and  two  of  the 
three  laymen  first  elected  by  the  church.  The  two  lay- 
men are  simply  a  thin  veil  to  hide  the  fact  that  the  state 
has  struck  its  flag  to  the  church. 

The  ecclesiastical  authorities  as  such  have  no  power 
whatever  to  administer  the  church  property.  Even  the 
trustees  are  subject  to  certain  limitations  in  this  res])ect. 
Far  more  important,  however,  is  the  fact  that  the  very 
right  of  the  congregation  to  acquire  property  is  limited 
to  a  certain  extent.  These  limitations  affect  not  only 
the  amount  acquired  but  the  method  of  acquisition.  The 
right  to  acquire  real  estate  is  particularly  limited.  Yet 
these  provisions  often  exist  only  on  paper.  Sometimes  it 
is  not  easy  to  conceal  a  violation  of  them ;  sometimes  the 
boards  make  no  attempt  to  conceal  it.  Nevertheless,  the 
principles  of  these  laws  in  regulation  of  ecclesiastical  re- 
lations provide  the  means  for  energetic  public  action,  if  a 
church  filled  with  hierarchical  tendencies  should  ever 
become  possessed  of  such  material  power  that  public  opin- 
ion began  to  perceive  a  danger  in  it. 

THE  ORGANS  OF  SELF-GOVERNMENT,  i 

§  99.  In  General.  While  in  Europe  the  eighteenth 
century  was  characterized  by  excessive  centralization, 
and  it  is  only  in  the  nineteenth  that  the  principles  of  self- 
government  have  been  toilsomely  and  very  gradually 
brought  into  play  against  the  principle  of  the  state's  uni- 
versal control,  the  development  of  the  United  States  has 
taken  exactly  the  opposite  course.  Here  the  most  extreme 
decentralization  was  the  original  basis.  The  history  of 
the  separate  states  naturally  contains  nothing  which  offers 

I  J,  N.  Pomeroy,  Municipal  Law,  N.  Y.,  1864:  J.  F.  Dillon,  Munic- 
ipal Corporations,  3d  ed,,  2  vols.,  Boston,  1881. 
21 


322  THE    COXSTITLTIOXAL    AND    GENERAL    LAW 

an}'  analogy  to  the  bitter  experiences  and  hard  struggles, 
through  which  the  federal  government  hit  by  bit  won  the 
power  imperiously  demanded  by  the  vital  interests  of  the 
community,  and  indeed  absolutely  necessarj'  for  the  per- 
petuation of  the  Union.  The  factors  of  the  state  govern- 
ment depend  so  immediately  upon  the  people  that  there 
can  scarcely  be  protracted  and  serious  conflicts  between 
government  and  people.  At  most,  there  may  be  differ- 
ences between  the  larger  cities  and  the  legislatures;  for 
it  is  not  inconceivable  that  the  former  may  think  their 
special  interests  are  systematically  neglected  or  badly 
treated  by  the  majorit\'  of  the  countrv  representatives, 
either  from  ignorance  or,  indeed,  from  lack  of  good  will. 
Cities  like  ^'ew  York,  Philadelphia,  Boston,  Chicago,  St. 
Louis,  are  too  populous  and  too  powerful  to  allow  such 
an  opposition  of  opinions  and  interests  to  win  a  chronic 
character,  without  a  struggle.  In  general,  however, 
centralization  can  never  go  further  in  the  single  states 
than  public  opinion  demands  or  at  least  permits.  And, 
on  the  whole,  public  opinion  has  thus  fai'  held  fast  to  the 
principle  that  all  local  atfairs  shall  as  far  as  possible  be 
left  to  local  authorities.  The  constitutional-law  authority 
of  the  legislatures  is  great  enough  to  cut  down  local  gov- 
ernment at  one  stroke  to  very  modest  proportions,  for 
individual  rights  are  never  the  basis  of  local  government. 
Considerations  of  expediency  lead  the  state  to  create 
municipal  organizations  of  various  kinds  and  grades;  and 
these  have  only  such  powers  as  the  state  grants  them. 
The  powers  are  either  expressly  granted  or  implied  in 
those  expressly  granted,  because  necessary  in  order  to 
execute  the  latter.  The  courts  also  recognize  to  a  certain 
extent  a  law  of  custom,  because  as  a  matter  of  fact  cer- 
tain powers  are  rooted  so  ineradicably  in  custom,  that 
they  are  frequently  not  expressly  granted  simply  because 


OF   THE   SEPARATE    STATES.  323 

they  are  regarded  as  perfectly  self-evident.  On  the  con- 
trary, powers  deduced  only  by  analogy  are  not  recognized 
by  the  courts,  that  is,  it  must  not  be  inferred  because  a 
definite  right  has  been  granted  that  analogous  rights 
also  exist.  The  grant  of  power  is  made  by  general  law 
or  by  a  special  act,  but  there  is  not  in  the  latter  case,  any 
more  than  in  the  former,  a  "  contract "  (in  the  sense  of 
the  federal  constitution)  which  cannot  be  broken.  Acts 
of  incorporation  and  charters  may  be  amended  just  like 
general  laws  at  any  moment  by  the  legislature.  They 
may  be  entirely  repealed,  for  no  vested  rights  pass  under 
them  with  which  the  state  thereafter  cannot  interfere.^ 
City  limits  may  be  extended  or  curtailed,  counties  div^ided 
or  combined,  towns  abolished,  cities  degraded  to  towns, 
etc.,  and  those  concerned  cannot  seek  the  protection  of 

iThis  is  true  only  of  the  poicers  granted.  "  It  is  an  unsound  and 
even  absurd  proposition  that  political  power  conferred  by  the  legisla- 
ture can  become  a  vested  right,  as  against  the  government,  in  any 
individual  or  body  of  men."  Judge  Nelson  in  People  vs.  Morris,  13 
Wend.,  331,  cited  by  Cooley,  Constitutional  Limitations,  269.  The 
property  of  a  municipality  is  of  course  not  wholly  subject  to  the 
arbitrary  will  of  the  legislature.  The  appropriate  constitutional 
principles  are  thus  stated  by  Cooley :  "  When  corporate  powers  are 
conferred,  there  is  an  implied  compact  between  the  state  and  the  cor- 
porators that  the  property  which  they  are  given  the  capacity  to  ac- 
quire for  corporate  purposes  under  their  charter  shall  not  be  taken 
from  them  and  appropriated  to  other  uses.  If  the  state  grants  prop- 
erty to  the  corporation,  the  grant  is  an  executed  contract  which  can- 
not be  revoked.  The  rights  ac(iuired  either  by  such  grants,  or  in  any 
other  legitimate  mode  in  which  such  a  corporation  can  acquire  prop- 
erty, are  vested  rights  and  cannot  be  taken  away."  But  as  the  state 
has  not  only  a  right  of  general  control  over  this  kind  of  property, 
but  can  also  change  or  annul  "  corporate  powers"  themselves,  it  may 
under  certain  circumstances  be  the  state's  right,  and  even  its  duty, 
to  make  some  other  disposition  of  the  property,  but  always  with  the 
limitation  "  that  the  purpose  for  which  the  property  was  originally 
acquired  shall  be  kept  in  view,  so  far  as  the  circumstances  will  ad- 
mit, in  any  disposition  that  may  be  made  of  it."    Ibid.,  p.  270. 


824  THE    COXSTITUTIOXAL    AND    GENERAL    LAW 

tlie  courts  on  the  ground  that  their  former  rights  were 
violated.  On  the  other  hand,  the  constitutions  often 
set  hmits  to  the  legislative  power  in  such  matters.  These 
measures  can  be  taken  only  in  a  prescribed  way  or  are 
permitted  only  under  prescribed  conditions, —  for  instance, 
the  assent  of  the  parties  in  interest.  Such  limiting  pro- 
visions especia'll}"  abound  in  the  constitutions  in  regard 
to  the  division  or  union  of  counties,  the  partition  of  the 
public  property  or  debts  when  such  changes  are  made, 
the  removal  of  county  seats,  etc. 

Municipal  Gokpoeations  are  divided  into  two  main 
classes:  municipalities  in  the  more  limited  sense,  which 
are  realh^  public  legal  corporations,  and  those  often  des- 
ignated by  American  publicists  as  "  ^^ms^-corporations." 
The  latter  are  created  by  general  laws  and  have  in  every 
state  substantially  the  same  rights  and  duties.^  Their 
raison  cVetre  is  not,  as  with  the  municipalities  proper, 
an  actual  separate  existence,  economically  and  socially, 
but  the  necessity  of  dividing  the  state  for  administrative 
purposes  into  departments  of  greater  or  less  size.  They 
have  properly  no  natural  existence  at  all.  They  are  in 
substance  merely  creatures  of  art.  If  a  map  of  the  United 
States  w^hich  shows  the  chief  subdivisions  of  the  states 
is  examined,  the  predominance  of  straight  lines  strikes 

'  The  limits  of  the  two  are  complex  and  involved.  Cooley,  Const. 
Lim.,  p.  273,  defines  townships  as  "municipal  corporations  "  which  do 
"not  usually  possess  corporate  powers  under  special  charters;  but 
exist  under  general  laws  of  the  state,"  and  to  which  so  little  "  corpora- 
tive existence  is  granted,"  "that  they  are  sometimes  spoken  of  as 
nondescript  in  character."  D.  B.  Eaton,  on  the  contrary,  says:  "  Our 
state  legislatures  have  tended  towards  becoming  mere  registering 
offices  for  city,  village  and  town  charters,  which  in  their  provisions 
are  almost  as  diverse  and  hostile  as  were  the  laws  and  municipalities 
of  tlie  Middle  Ages."  Municipal  Government,  Journal  of  Social 
Science,  1875. 


OF   THE    SEPARATE    STATES.  325 

one  at  first  glance.  These  lines  bound  these  chief  divis- 
ions; and  these  repay  examination,  because  the  institu- 
tions of  the  thirty-eight  states  show  a  far  greater  similarity 
as  to  these  than  as  to  the  smalleror  smallest  subdivisions. 
§  100.  Counties.  These  chief  divisions  are  now  called 
counties  in  all  the  states  except  Louisiana,  where  they  are 
known  as  parishes.  Several  constitutions  direct  the  legis- 
latures to  give  the  counties  natural  boundaries,  as  far  as 
practicable.  As  a  rule  this  is  impossible,  even  though  the 
counties  need  not  be  of  the  same  size.  Many  constitutions 
require  that  new  counties  shall  be  of  a  minimum  size, 
varying,  however,  from  two  hundred  and  seventy-five 
to  nine  hundred  square  miles.  In  the  newer  and  larger 
states  four  hundred  to  six  hundred  square  miles  is  the  nor- 
mal extent.  It  is  evident,  therefore,  that  the  counties, 
even  in  those  states  which  exceed  in  size  many  European 
kingdoms,  never  bear  the  character  of  provinces.  They 
are  subdivisions,  but  subdivisions  with  quite  extensive 
powers.  The  officials  as  a  rule  are  elected,  and  elected, 
like  most  American  officials,  for  a  very  limited  time.  In 
several  states,  however,  they  are  appointed  by  the  gov- 
ernor. Even  then,  nevertheless,  they  always  bear  the 
character  rather  of  organs  of  self-government  than  of  gov- 
ernment officials  in  the  European  sense.  It  is  one  of  the 
most  important  distinctions  between  American  and  Eu- 
ropean institutions — as  De  Tocqueville  insisted — that  in 
Europe  more  or  less  even  in  local  government  the  direct 
or  indirect  control  of  the  central  government  is  held  to  be 
unavoidable,  whereas  in  the  United  States  the  facts  are  just 
the  other  way:  —  the  state  uses  the  organs  of  local  gov- 
ernment to  discharge  its  own  tasks,  for  instance,  levying 
and  collecting  taxes.  Both  the  extent  and  the  manner  of 
this  are  different  in  the  different  states,  for  on  this  point  as 
on  all  others  the  organization  of  self-government  varies  in 


32G  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

a  myriad  details.  But  despite  many  differences,  some  of 
tlieni  of  no  slight  importance,  all  the  states  offer  in  their 
county-systems  a  sufficiently  faithful  representation  of  the 
nature  and  form  of  self-government.  The  geogra})hical 
centre  of  county  government  is  called  the  county-seat. 
Here  are  the  court-house  and  the  jail.  Every  county  has  its 
own  county  court,  with  a  rather  limited  jurisdiction,  very 
different  in  the  different  states.  Connected  with  the  court 
are  a  sheriff,  a  coi'oner,  and  a  ])rosecuting  attorney.  The 
sheriff  represents  the  executive  and  administrative  power 
of  the  state.  He  must  preserve  the  public  i)eace  and  can 
summon  the  inhabitants  as  a  po'^se  corru' f at >fs  to  aid  him  in 
doing  so.  He  enforces  the  judgment  of  the  courts,  makes 
arrests,  is  responsible  for  the  prisoners,  and  therefore  has 
charge  of  the  jail.  The  jailer  is  generally  named  by  him. 
and  is  usually  one  of  the  deputies  whom  he  has  a  right  to 
appoint, —  either  general  or  special  deputies.  He  has  also 
certain  judicial  powers,  which  are  fixed  by  statute  and  are 
mucli  more  limited  than  according  to  tlie  English  common 
law.  In  most  of  the  states  the  constitution  limits  this  im- 
])ortant  officer  s  eligibility  for  re-election.  The  coroner's 
chief  duty  is  to  investigate,  with  the  aid  of  a  coroner's  jury, 
cases  of  sudden,  mysterious  or  violent  death,  deaths  in 
prison,  etc.  The  coroner  need  know  nothing  of  medicine. 
In  Massachusetts  the  office  was  abolished  in  1877,  and  the 
L^overnor  was  authorized  to  entrust  doctors  with  the  inves- 
tio-ation  of  deaths.  At  the  head  of  the  administration  of 
affairs  is  a  board  of  county  commissioners  or  supervisors. 
As  a  rule  they  are  separate  officers,  but  the  boards  are 
sometimes  made  up  of  township  commissioners  or  super- 
visors. The  South  Carolina  constitution  makes  their  pow- 
ers extend  to  "roads,  highways,  ferries,  bridges,  and  in 
all  matters  relating  to  taxes,  disbursements  of  money  for 
county  purposes,  and  in  every  other  case  that  may  be  nee- 


OF   THE   SEPAEATE   STATES.  327 

essary  to  the  internal  improvement  and  local  concerns  of 
the  respective  counties."  The  North  Carolina  constitution 
expressly  gives  them  also  "  a  general  supervision  and  con- 
trol of  the  penal  and  charitable  institutions,  schools,"  etc. 
To  fulfill  these  duties,  the  board  can  levy  and  collect 
taxes  and  contract  debts  (in  both  these  respects  the  con- 
stitution or  the  laws  limit  their  actions),  can  acquire  and 
dispose  of  property,  can  adopt  bj'^-laws  and  pass  ordinances 
and  punish  any  violation  of  them,  can  make  contracts  and 
bring  suits  .(and,  of  course,  can  themselves  be  sued). 
Many  constitutions  expressly  forbid  counties,  townships, 
etc.,  to  lend  their  credit  to  private  corporations  or  to  take 
any  direct  interest  in  private  enterprises.  The  cause  of 
this  is  the  misuse  which  has  often  been  made  of  such  a 
power.  Speculators  have  taken  advantage  of  the  exag- 
gerated ideas  of  the  people  about  the  industrial  results  of 
railroad  schemes.  The  chancellor  —  so  to  speak  —  of  the 
administration  is  the  county  clerk.  Where  there  is  no 
separate  recorder  or  register  of  deeds,  the  clerk  acts  in  that 
capacity.  A  treasurer  has  charge  of  the  county  funds. 
Taxes  are  often  levied  by  separate  officials,  who  are  called 
assessors.  The  different  county  officers  are  not  always 
elected  or  appointed  for  the  same  terms.  Where  there  is 
a  difference  in  the  terms  of  office,  it  is  especially  the  sher- 
iff and  treasurer  who  are  most  frequently  chosen. 

There  is  no  need  of  going  into  detail  about  the  election 
districts  and  the  already-mentioned  school-districts,  be- 
cause these  are  not  organizations  with  a  separate  life  of 
their  own. 

§  101.  Towns  and  Townships.  The  town-system  has 
worked  so  well  in  the  New  England  states  that  it  has 
been  adopted  by  several  of  the  middle  and  most  of  the 
western  states,  and  has  recently  begun  to  find  favor  in 
the  south.     A  county  is  divided  into  districts  of  from 


328  THE    CONSTITUTIONAL    AND    GENERAL    LAW 

four  to  six  miles  square,  called  a  town  or  township,  and 
forming  a  body  corporate.  Its  self-government  extends 
to  all  local  affairs,  and  rests  on  the  broadest  democratic 
basis.  Here  democratic  self-government,  as  it  existed  in 
the  city-republics  of  antiquity,  ag'ain  asserts  itself  against 
the  representative  system.  Public  affairs  are  discussed  and 
decided  upon  in  the  town  meeting,  and  every  inhabitant 
who  has  a  vote  under  the  state  laws  is  entitled  to  attend 
and  to  vote  at  the  town  meeting.  In  the  announcement 
of  a  town  meeting,  all  the  questions  that  will  be  pre- 
sented for  discussion  must  be  clearly  set  forth,  so  that 
everybody  may  have  time  to  consider  and  form  an  opin- 
ion. The  meetings  are  usually  held  in  the  largest  vil- 
lage, or  in  the  one  nearest  the  centre.  Populous  towns, 
indeed,  have  a  hall  of  their  own  for  this  purpose,  called 
the  town  hall.  Where  there  is  none  such,  the  church  or 
the  school-house  usually  serves  as  a  meeting  place.  The 
meeting  is  presided  over  by  a  chairman,  who  is  called,  in 
the  jSTew  England  states,  a  moderator.  The  duties  and 
powers  of  the  town  embrace  levying  and  collecting  taxes 
on  the  basis  of  assessments  made  by  the  town  officials; 
building  and  maintaining  roads  and  bridges;  police;  care 
of  the  poor;  the  school  system,  under  the  control  of  the 
state  school  laws;  the  conduct  of  ail  elections,  etc.  The 
town  officials  are  generally  elected  by  ballot  for  one  year, 
but  in  some  states  for  a  longer  time.  The  board  of 
county  commissioners  finds  its  parallel  in  a  board  of 
selectmen  or  trustees.  The  fact  deserves  especial  men- 
tion, that  at  the  close  of  the  vear  thev  make  a  ijeneral 
statement  of  accounts,  and  at  the  same  time  an  estimate 
of  the  expenditures  of  the  next  year,  which  serves  as  a 
basis  for  the  tax  levy.  Taxes  are  levied  by  a  board  of 
assessors,  and  collected  by  a  "  tax-collector."  The  town 
iinances   are  managed   by  a  treasurer.     The  selectmen 


OF   THE    SEPARATE    STATES.  829 

are  often  at  the  same  time  assessors  and  commissioners 
of  the  poor.  The  town  clerk  often  holds  also  the  office 
of  treasurer.  The  clerk  is  a  very  important  officer.  He 
not  only  records  the  proceedings  and  conclusions  of  the 
town  meetings  and  of  the  selectmen,  but  also  the  birth, 
marriage  and  death  statistics  of  the  town.  School  affairs 
are  put  in  charge  of  a  committee.  The  officers  in  charge 
of  the  streets  are  called  surveyors  or  road  mastei*s.  The 
police  officials  are  called  constables. 

§  102.  Cities.  In  1873,  a  famous  and  highly  respected 
American  said :  "  It  is  not  only  true  that  we  have  not 
created  or  adopted  any  municipal  system,  but  it  is  also 
true  that  we  have  not,  except  in  the  past  two  years,  stud- 
ied the  great  cit}'  problem,  much  less  gained  any  true 
conception  of  the  principles  and  methods  best  adapted  to 
a  great  city  government.  .  .  .  Surely  nothing  else  on 
this  continent  has  been  so  badly  managed,  or  is  in  a  con- 
dition at  once  so  dangerous  or  so  disgraceful." '  Since 
there  is  no  general  American  municipal  system,  it  is  not 
possible  to  sketch  in  a  few  lines  a  correct  outline  of  city 
government  and  management.  Apart  from  a  few  facts 
of  a  general  nature,  the  differences  are  so  many  and  so 
essential  that  generalization  is  barred.  I  must  content 
myself  with  a  few  general  remarks,  chiefly  of  a  histor- 
ical character,  which  may  serve  to  explain  and  establish 
the  assertion  I  have  quoted.  The  larger  cities  are  espe- 
cially to  be  considered  in  this  matter,  partly  because  it  is 
in  them  that  the  evils  due  to  the  system,  or  lack  of  sys- 
tem, have  come  most  clearly  to  light,  and  partly  because 
it  is  they  which  make  the  problem  of  municipal  govern- 
ment a  question  of  the  firet  rank.  The  germs  of  the 
weeds  which  have  sprouted  up  so  exuberantly  can  also 

1 D.  B.  Eaton,  Municiiial  Oovemment,  Journal  of  Social  Science, 
1873,  p.  6. 


330  THE    COXSTITUTIOXAL    AND    GENERAL    LAW 

generally  be  found  in  cities  of  the  second  and  third  rank. 
If  the  germs  have  not  developed  in  as  startling  a  wa}", 
tliis  is  not  due  to  the  virtue  of  the  inJiabitants.  Civic 
virtue  —  outside  of  the  mushroom  minijig  and  railroad 
cities  of  the  far  west  —  nowhere  rises  high  above  or  falls 
far  below  the  average  level.  In  these  smaller  cities  the 
evils  are  less,  on  account  of  all  kinds  of  accidental  cir- 
cumstances, and  especially  because  the  capacity  of  de- 
velopment of  these  germs  has  a  fixed  relation  to  the  size 
of  the  community. 

The  war  of  independence  and  its  genei'al  political  re- 
sults did  not  change  the  basis  of  municipal  affairs.  The 
cities  lived  quietly  along  under  their  royal  charters.  It 
Avas  only  in  the  third  decade  of  the  present  century  that 
a  revolution  began.  It  was  not  by  chance  that  it  coin- 
cided in  time  with  the  first  great  aggressive  movement 
of  the  slave-holders' aristocracy  in  the  battle  over  Mis- 
souri. The  growth  of  the  slave-holding  power  and  the 
radicalization  of  democracy  in  the  free  states  kept  equal 
pace.  Each  was  one  of  the  conditions  of  the  other.  The 
farther  the  radicalization  of  democracy  ])roceeded,  the 
more  the  statesman  had  to  make  room  for  the  profes- 
sional politician,  able  only  in  the  little  tricks  of  party 
politics,  and  often  a  demagogue  of  the  first  water.  And 
the  more  the  people  changed  the  leadership  of  statesmen 
for  the  rule  of  these  professional  politicians  and  dema- 
gogues, the  easier  did  the  slavocrac}'  find  it  to  carry 
through  its  demands.  It  therefore  most  energetically 
supported  the  development  of  this  tendency  in  the  north. 
The  infusion  of  radical  democratic  principles  into  munici- 
pal life  was  the  root  of  all  the  evils  under  which  the 
administration  of  the  larger  cities  sickened  more  and 
more,  until  the  condition  of  Xew  York  became  en- 
tirely too  monstrous,  and  with  the  overthrow  of  the  city 


OF   THE   SEPARATE   STATES.  331 

government  of  1870,  thinking  people  began  to  turn  theii 
serious  attention  to  this  question. 

It  was  forgotten  that  the  city  of  modern  times  is  only 
an  economic  and  social  community,  and  not  also  a  polit- 
ical one,  as  the  city  of  the  Middle  Ages  was.  As  there 
was  no  general  system  of  city  government,  but  each  city 
had  its  own  charter,  and  special  laAvs  could  be  passed 
any  moment  on  any  matter,  the  cities  —  especially  the 
large  ones  —  found  frequent  opportunity  to  get  greater 
powers  at  the  expense  of  the  state.^  At  the  same  time 
the  doctrine  that  the  franchise  is  a  natural  riglit  of  every 
man  became  more  and  more  the  basis  of  municipal  insti- 
tutions. The  mayor,  the  aldermen  and  the  council  (or 
common  council)  were  elected  directly  by  the  people,  and 
the  vote  of  the  lowest  scamp  counted  just  as  much  as 
that  of  the  greatest  merchant  prince.  Whoever  knew 
how  to  cajole  the  masses,  who  contribute  little  or  noth- 
ing to  the  public  burdens,  could  take  the  purse  of  the  city 
into  his  hands, —  a  booty  great  enough  to  allure  both  po- 
litical parties.  Instead  of  the  common  good,  party  inter- 
ests were  more  and  more  made  paramount  in  the  city 
elections.  The  frequent  recurrence  of  the  elections,  often 
each  year,  made  it  still  easier  to  thrust  deep  into  civic 
life  the  dragon-seed  of  partisanship,  while  the  necessary 
continuity  disappeared  more  and  more  from  the  adminis- 

'  "There  has  been  no  greater  legislative  abuse,  no  more  prolific 
source  of  fraud,  ]3illage  and  litigation,  than  the  accumulation  of 
special  city  and  village  laws.  In  New  York,  for  example,  in  each  of 
the  four  years  sut-ceeding  1867,  the  number  and  bulk  of  such  laws 
enacted  have,  I  tuink,  exceeded  all  similar  legislation  in  England, 
since  the  enactment  of  the  general  municipal  corporations  act  in 
1835.  In  1870  the  legislature  of  New  York  passed  thirty-nine  special 
laws  for  the  city  of  Brooklyn  alone!  "     Eaton,  p.  12. 

"  We  have  too  much  surrendered  the  sovereignty  of  tUe  states  to 
the  claims  of  cities  and  villages."    Ibid.,  p.  9. 


332  THE    CONSTITUTIONAL    AND    GENEKAL    LAW 

tration  of  city  affairs,  and  the  business  experience  of  the 
officials  became  steadily  less.  City  offices,  like  those  of 
the  state  and  Union,  were  regarded  as  spoils  of  the  vic- 
torious party,  Avith  which  the  faithful  partisan  was  to  be 
paid  and  a  new  horde  of  "working"  and  "practical" 
politicians  was  to  be  allured.  The  method  of  appoint- 
ment was  often  such  that  no  one  could  well  be  made  re- 
sponsible for  a  bad  official,  and  the  consequence  of  this 
and  of  the  spoils  system  in  general  was  that  year  after 
year  a  more  doubtful  class  of  persons  tilled  the  city 
offices.  The  principal  official  task  was  not  the  fulfillment 
of  official  duties,  but  the  doing  of  political  work;  for 
whoever  forfeited  the  favor  of  the  local  party-leaders 
also  lost  his  office,  and  that  favor  depended  upon  how 
much  a  man  was  worth  to  the  party.  The  washed  or 
unwashed  ward-politician,  whose  headquarters  were  usu- 
ally a  tap-room,  drove  the  man  of  judgment  and  common 
sense  entirely  out  of  the  field,  and  the  city  administra- 
tion steadily  developed  into  a  real  rat-pit  of  demagogues 
of  all  sorts  and  of  every  grade,  from  the  man  who  used 
city  politics  only  as  a  ladder  by  which  to  mount  to  state 
or  national  power,  down  to  the  insatiable  thief  whose 
first  stolen  million  only  inflamed  his  desire  for  the  sec- 
ond. The  better  elements  either  really  could  not  stem 
the  increasing  laxity,  or  they  did  not  know  how  to  take 
hold  of  matters,  or  they  did  not  make  a  single  serious 
effort  to  briu"^  about  a  thorough-goino:  reform.  It  is  un- 
doubtedly  due  in  no  small  degree  to  the  extreme  optim- 
ism of  the  American  people  that  this  evil  could  gain  such 
proportions.  To  this  was  added  a  stubborn  unwilling- 
ness to  give  up  the  deep-rooted  and  beloved  doctrine  that 
the  rights  of  man  must  be  the  foundation  of  municipal 
institutions  as  well  as  of  national.  As  long  as  evils  can 
become  much  worse  than  they  are,  Americans  are  not 


OF   THE    8EPAKATE   STATES.  333 

easily  persuaded  to  consider  them,  and  to  undertake  with 
energy  and  earnestness  reforms  which  involve  substantial 
changes.  But  the  principal  cause  was  unquestionably 
that  the  evil  had  so  affected  all  sides  of  municipal  life, 
and  had  reached  such  a  point,  that  it  had  an  immense 
power  of  resistance.  From  whatever  side  the  attack  was 
attempted,  almost  invincible  obstacles  presented  them- 
selves. When  election  day  came  the  citizen,  as  a  rule, 
had  only  a  choice  between  two  evils.  "While  he  had  been 
attending  to  his  business  the  thoughts  and  acts  of  the 
politicians  had  been  directed  during  the  whole  year  upon 
this  decisive  day.  The  world  was  shared  before  the  citi- 
zen arrived  on  the  ground:  i.  e.,  the  official  list  of  party 
candidates  was  prepared,  and  it  remained  for  him  only  to 
vote  for  one  or  the  other,  or  else  to  throw  away  his  bal- 
lot. "Who  had  the  time,  the  desire  and  the  commanding 
position  needed  to  assemble  individuals,  to  organize  them 
and  to  persuade  them  to  act  together,  not  only  independ- 
ently of  the  existing  party  organizations,  but  in  direct 
opposition  to  them  and  the  thousands  and  tens  of  thou- 
sands of  mercenary  voters  upon  whom  they  reckoned  ? 
The  social,  intellectual  and  moral  coherence  of  the  people 
was  becoming  less  and  4ess,  because  of  the  rapid  growth 
of  the  cities  under  the  influence  of  modern  means  of  in- 
tercourse and  production.  The  destruction  of  the  vital- 
izing communal  spirit,  as  it  had  existed  in  the  conserva- 
tive times  of  the  early  republic,  a  nation  of  small 
tradesmen  and  farmers,  was  greatly  promoted  by  the 
immense  influx  of  Europeans  of  different  nations.  Power 
was  delivered  up  to  the  mass,  and  the  mass  was  a  fluctu- 
ating chaos,  made  up  of  men  from  all  parts  of  America 
and  Europe.  A  no  small  fraction  of  it  either  took  not 
the  slightest  exception  to  the  devastating  rule  of  the  dem- 
agogues, or  expected  to  make  money  out  of  it.    And  if 


334  THE    CONSTITUTIONAL   AND    GENEKAL    LAW 

the  pressure  became  so  great  that  the  sensible  and  intel- 
gent  people  once  assembled  and  won  a  victory  at  the 
polls,  the  politicians  soon  regained  their  lost  ground ;  for 
they  kept  united  and  kept  hold  of  the  levers  of  the  polit- 
ical machine.  But  the  citizen  went  back  to  his  business, 
and  the  method  of  civic  administration  remained  un- 
changed. In  other  words,  the  first  causes  to  which  the 
evil  was  due  were  allowed  to  quietly  continue.  Public 
opinion,  even,  was  systematically  falsified  because  the 
leading  politicians  bought  part  of  the  press  by  the  use  of 
the  official  advertising.  The  party  leaders  on  both  sides 
circumvented  their  own  parties  by  corrupt  alliances  with 
each  other  for  the  distribution  of  the  offices.  .  Finally, 
the  crowu  was  placed  upon  the  whole  monstrosity  when 
an  elected  judge,  belonging  to  the  gang,  covered  up  the 
bold  knavery  and  the  comprehensive  crimes  of  its  mem- 
bers. 

I  have  intentionally  sketched  the  situation  in  I^ew 
York,  because  the  evils  in  the  communal  life  of  great 
American  cities  come  most  clearly  to  light  here.  The 
other  municipal  pictures  show  the  same  general  type; 
only  the  coloring  and  tone  are  not  so  bright,  and  in  many 
cities  of  the  third  grade  they  darken  into  such  a  harmless 
grey,  that  in  a  few  cases  even  clear  eyes  would  no  longer 
be  able  to  recognize  the  general  type. 

iSTew  York  seemed  to  be  the  fittest  example  to  present, 
not  only  because  here  the  typical  lines  are  easiest  recog- 
nized, but  because  in  New  York  the  bow  was  bent  too 
far  by  the  demagogues,  and  the  catastrophe,  which  over- 
threw in  1<ST0  the  rule  of  the  leaders  of  Tammany  Hall, 
gave  rise  to  a  serious  investigation  of  the  question  of  city 
government.  Already,  indeed,  more  or  less  thorough 
reforms  of  every  sort  had  been  tried  and  brought  about 
in  man}'  states  and  the  initiative  given  in  many  cities. 


OF   THE   SEPARATE   STATES.  335 

but  it  was  only  through  the  occurrences  in  I^ew  York 
that  a  general  and  thorough  discussion  of  the  question 
was  caused.  This  has  borne  rich  fruit,  even  if  every- 
thing which  might  be  desired  and  even  everything  which 
is  absolutely  necessary  has  not  yet  been  done.  The 
ends  sought  are  to  enforce  personal  responsibility;  to 
make  the  mayor  more  independent;  to  unite  the  two  law- 
making bodies  into  one;  to  guard  the  appointment  of 
officials;  to  place  the  most  important  executive  officers 
ander  more  stringent  control ;  to  withdraw  certain  depart- 
ments—  especially  the  police  and  fire  departments  — 
wholly  from  party  control;  to  give  the  public  new  and 
better  opportunities  to  watch  the  deeds  and  omissions  of 
the  city  office-holders;  to  give  wider  scope  to  the  prin- 
ciples of  civil  service  reform ;  to  compress  within  nar- 
rower limits  the  evil  of  special  legislation  for  cities;  and 
gradually,  in  place  of  special  charters,  to  bring  to  pass 
general  laws  for  municipalities  divided  by  law  into 
classes. 

If  the  condition  of  the  great  cities  of  America  was  by 
far  the  darkest  picture  in  the  public  affairs  of  the  United 
States,  and  is  so  still,  in  part,  yet,  on  the  other  hand,  the 
development  of  the  last  fifteen  years  on  this  very  subject 
has  given  manifold  proofs  of  the  great  political  capacity 
and  the  great  moral  seriousness  of  the  American  people. 
It  is  very  evident  that  American  public  affairs  can  neither 
be  rightly  understood  nor  fairly  judged,  if  they  are  stud- 
ied by  themselves,  that  is,  without  regard  to  their  histor- 
ical development.  This  cannot  be  urged  with  too  much 
emphasis,  although  the  doctrine  may  seem,  on  account  of 
its  generally  recognized  validity,  only  a  trite  truth.  Polit- 
ically and  socially  the  United  States  are  in  all  essential 
particulars  a  community  so  like  the  European  civilized 
world,  that  Europeans  almost  always  fall  into  the  error 


33()       COXSTITUTIOXAL    LAW    OF    THE    SEPARATE    STATES. 

of  judging-  about  transatlantic  affairs  simply  by  compar- 
ing them  with  the  corresponding  Euro])ean  relations  and 
institutions,  and  so,  in  spite  of  the  unconditional  recogni- 
tion of  this  doctrine,  the\^  examine  and  criticise  America 
from  European  stand-points.  They  can  readily  enumerate 
the  essential  facts  which  have  made,  and  must  make,  the 
United  States,  politically  and  socially,  a  sui-generis  civil- 
ized state,  but  they  almost  never  take  these  facts  into 
consideration  in  the  right  way  and  at  their  real  worth 
when  this  theoretical  knowledge  is  applied  to  concrete 
questions.  This  requires,  indeed,  a  long  life  among 
Americans,  and  long  work  with  them;  for  the  history  of 
the  old  world  presents  no  analogies,  and  it  is  therefore 
only  when  guided  by  a  thousand  single  instances  of  daily 
life,  by  direct  personal  perception  and  by  experience, 
that  one  can  fully  understand  the  constant  and  all-per- 
vading influence  of  those  factors  which  are  peculiar  to 
the  new  world.  These  factors,  developed  to  a  high  de- 
gree, point  out  the  goal  to  be  reached  as  well  as  the  best 
way  to  reach  it,  because  they  form  its  positiv^e  basis. 
The  more  comprehensive  and  thorough  one's  knowledge 
is  of  the  conditions  under  which  the  United  States  have 
attained  their  present  social  and  political  status,  the  more 
convinced  Avill  one  become,  despite  all  sharp  criticism  of 
individual  instances,  that  a  judgment  of  the  whole  phe- 
nomenon must  be  embodied  in  these  words:  no  people  of 
ancient  or  modern  times  has  shown  a  greater  genius  for 
founding  a  state. 


CONSTITUTION  OF  THE  UNITED  STATES- 1787. 


Note:  The  figures  after  the  different  clauses  refer  to  the  pages  of  the  book. 

We  the  People  of  the  United  States,  in  Order  to  form 
a  more  perfect  Union,  establish  Justice,  insure  domestic 
Tranquility,  provide  for  the  common  defence,  promote 
the  general  Welfare,  and  secure  the  Blessings  of  Liberty 
to  ourselves  and  our  Posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America.   37, 47. 

ARTICLE  I. 

Section  1.  All  legislative  Powers  herein  granted  shall 
be  vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives.     112. 

Section  2,  The  House  of  Representatives  shall  be 
composed  of  Members  chosen  every  second  Year  by  the 
People  of  the  several  States,  and  the  Electors  in  each 
State  shall  have  the  Qualifications  requisite  for  Electors 
of  the  most  numerous  Branch  of  the  State  Legislature. 
70,  71,  72. 

No  Person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  Age  of  twenty-five  Years,  and  been 
seven  Years  a  Citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  Inhabitant  of  that  State  in  which 
he  shall  be  chosen.     80. 

Representatives  and  direct  Taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  Numbers,  which 
22 


338  CONSTITUTION    OF   THE    UNITED   STATES  —  1787. 

shall  be  determined  by  adding  to  the  wliole  Xurnber  of 
Free  persons,  including  those  bound  to  Sei  vice  for  a  Term 
of  Years,  and  excluding  Indians  not  taxed,  tliree  fifths  of 
all  other  Persons.  The  actual  Enumeration  shall  be  made 
within  three  Years  after  the  first  Meeting  of  the  Con- 
gress of  the  United  States,  and  within  every  subsequent 
Term  of  ten  Years,  in  such  Manner  as  the_7  shall  by  Law 
direct.  The  N"umberof  Representatives  shall  not  exceed 
one  for  every  thirty  Thousand,  but  each  State  shall  have 
at  Least  one  Representative ;  and  until  such  enumeration 
shall  be  made,  the  State  of  New  Hampshire  shall  be  en- 
titled to  chuse  three,  Massachusetts  eight,  Rhode  Island 
and  Providence  Plantations  one,  Connecticut  five,  New 
York  six,  New  Jersey  four,  Pennsylvania  eight,  Dela- 
ware one,  Maryland  six,  Virginia  ten,  North  Carolina 
five.  South  Carolina  five,  and  Georgia  three.  73  (note 
2),  75,  118. 

When  vacancies  happen  in  the  Representation  from 
any  State,  the  Executive  Authority  thereof  shall  issue 
Writs  of  Election  to  fill  such  Vacancies.     70. 

The  House  of  Representatives  sliall  chase  tlieir  Speaker 
and  other  Officers ;  and  shall  have  the  sole  Power  of  Im- 
peachment.    82,  158. 

Section  3.  The  Senate  of  the  United  States  shall  be 
composed  of  two  Senators  from  each  State,  chosen  by 
the  Legislature  thereof,  for  six  Years;  and  each  Senator 
shall  have  one  Vote.     70,  79. 

Immediately  after  they  shall  be  assembled  in  Conse- 
quence of  the  first  Election,  they  shall  be  divided  as 
equally  as  may  be  into  three  Classes.  The  seats  of  the 
Senators  of  the  first  Class  shall  be  vacated  at  the  Expira- 
tion of  the  second  year,  of  the  second  Class  at  the  Expi- 
ration of  the  fourth  Year,  and  of  the  third  Class  at  the 
Expiration  of  the  sixth  Year,  so  that  one-third  may  be 


CONSTITUTION    OF   THE   UNITED   STATES — 1787.  339 

chosen  every  second  Year;  and  if  Yacancies  happen  by 
Resignation,  or  otherwise,  during  the  Recess  of  the  Leg- 
islature of  any  State,  the  Executive  thereof  may  make 
temporary  Appointments  until  the  next  Meeting  of  the 
Legislature,  which  shall  then  fill  such  Yacancies.     70. 

No  Person  shall  be  a  Senator  w- ho  shall  not  have  at- 
tained to  the  Age  of  thirty  Years,  and  been  nine  Years  a 
Citizen  of  the  United  States,  and  \vho  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  for  which  he  shall 
be  chosen.     80. 

The  Yice  President  of  the  United  States  shall  be  Pres- 
ident of  the  Senate,  but  shall  have  no  Yote,  unless  they 
be  equally  divided.     81. 

The  Senate  shall  chuse  their  other  Officers  and  also  a 
President  pro  tempore,  in  the  Absence  of  the  Yice  Presi- 
dent, or  when  he  shall  exercise  the  Office  of  President  of 
the  United  States.     81. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments. AVhen  sitting  for  that  Purpose,  they  shall  be  on 
Oath  or  Affirmation.  When  the  President  of  the  United 
States  is  tried,  the  Chief  Justice  shall  preside:  and  no 
Person  shall  be  convicted  without  the  Concurrence  of  two 
thirds  of  the  Members  present.     158,  162. 

Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification 
to  hold  and  enjoy  any  Office  of  honor,  Trust  or  Profit 
under  the  United  States :  but  the  Party  convicted  shall 
nevertheless  be  liable  and  subject  to  Indictment,  Trial, 
Judgment  and  Punishment,  according  to  Law.     161. 

Section  4.  The  Times,  Places  and  manner  of  holding 
Elections  for  Senators  and  Representatives,  shall  be  pre- 
scribed in  each  State  by  the  Legislature  thereof;  but  the 
Congress  may  at  any  time  by  Law  make  or  alter  such 
Regulations,  except  as  to  the  Places  of  chusing  Sena- 
tors.    76. 


3i0  CONSTITUTION    OF    THE    UNITED    STATES ITST. 

The  Congress  shall  assemble  at  least  once  in  every  Year, 
and  such  Meeting  shall  be  on  the  first  Monday  in  Decem- 
ber, unless  they  shall  by  Law  appoint  a  different  Day.     81. 

Section  5.  Each  House  shall  be  the  Judge  of  the  Elec- 
tions, Returns  and  Qualifications  of  its  own  Members, 
and  a  Majority  of  each  shall  constitute  a  Quorum  to  do 
Business;  but  a  smaller  Xuraber  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  Attendance 
of  absent  Members,  in  such  Manner,  and  under  such  Pen- 
alties as  each  House  may  provide.     100. 

Each  House  may  determine  the  Rules  of  its  Proceed- 
ings, punish  its  Members  for  disorderly  Behaviour,  and, 
with  the  Concurrence  of  two  thirds,  expel  a  Member.    101. 

Each  House  shall  keep  a  Journal  of  its  Proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such 
Parts  as  may  in  their  Judgment*  require  Secrecy;  and 
the  Yeas  and  Xays  of  the  Members  of  either  House  on 
any  question  shall,  at  the  Desire  of  one  fifth  of  those 
present,  be  entered  on  the  Journal.     108. 

Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  Place  than  that  in  which  the 
two  Houses  shall  be  sitting.     82. 

Section  0.  The  Senators  and  Representatives  shall  re- 
ceive a  Compensation  for  their  services,  to  be  ascertained 
by  Law,  and  paid  out  of  the  Treasury  of  the  United  States. 
They  shall  in  all  Cases,  except  Treason,  Felony  and 
Breach  of  the  Peace,  be  privileged  from  Arrest  during 
their  Attendance  at  the  Session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same;  and  for 
any  Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place.     101:,  104  (note). 

No  Senator  or  Representative  shall,  during  the  Time 
for  which  he  was  elected,  be  appointed  to  any  civil  Office 
under  the  Authority  of  the  United  States,  which  shall 


CONSTITUTION    OF   THE    UNITED   STATES  —  1787.  341 

have  been  created,  or  the  Emoluments  whereof  shall 
have  been  encreased  during  such  time;  and  no  Person 
holding  any  OflBce  under  the  United  States,  shall  be  a 
Member  of  either  House  during  his  Continuance  in  Office. 
106. 

SEcmoN  7.  All  bills  for  raising  Revenue  shall  originate 
in  the  House  of  Representatives;  but  the  Senate  may 
propose  or  concur  with  Amendments  as  on  other  Bills. 
132,  133. 

Every  Bill  which  shall  have  passed  the  House  of  Rep- 
resentatives and  the  Senate,  shall,  before  it  become  a  Law, 
be  presented  to  the  President  of  the  United  States.  If 
he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  Objections  to  that  House  in  which  it  shall  have 
originated,  who  shall  enter  the  Objections  at  large  on 
their  Journal,  and  proceed  to  reconsider  it.  If  after  such 
Reconsideration  two  thirds  of  that  House  shall  agree  to 
pass  the  Bill,  it  shall  be  sent,  together  with  the  Objec- 
tions, to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that 
House,  it  shall  become  a  Law.  But  in  all  such  Cases  the 
Yotes  of  both  Houses  shall  be  determined  by  yeas  and 
Nays,  and  the  Names  of  the  Persons  voting  for  and 
asrainst  the  Bill  shall  be  entered  on  the  Journal  of  each 
House  respectively.  If  any  Bill  shall  not  be  returned  by 
the  President  within  ten  Days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  Same  shall  be  a 
Law,  in  Like  Manner  as  if  he  had  signed  it,  unless  the 
Congress  by  their  Adjournment  prevent  its  Return,  in 
which  Case  it  shall  not  be  a  Law.     112,  113  (note). 

Every  Order,  Resolution,  or  Vote  to  which  the  Concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  Adjournment)  shall  be 
presented  to  the  President  of  the  United  States;  and 


342  CONSTITUTION    OF    THE    UNITED    STATES 1T87. 

before  the  Same  shall  take  Effect,  shall  be  approved  by 
him,  or  being  disapproved  by  him,  shall  be  repassed  by 
two  thirds  of  the  Senate  and  House  of  Eepresentatives, 
according  to  the  Eules  and  Limitations  prescribed  in  the 
Case  of  a  Bill.     113  (note). 

Section  S.  The  Congress  shall  have  Power  to  lay  and 
collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the 
Debts  and  provide  for  the  common  Defence  and  general 
Welfare  of  the  United  States;  but  all  Duties,  Imposts 
and  Excises  shall  be  uniform  throughout  the  United 
States;     117,118. 

To  borrow  Money  on  the  credit  of  the  United  States; 
62  (note),  122. 

To  regulate  Commerce  with  foreign  Nations,  and  among 
the  several  States,  and  with  the  Indian  Tribes;     130. 

To  establish  an  uniform  Kuleof  Naturalization,  and  uni- 
form Laws  on  the  subject  of  Bankruptcies  throughout 
the  United  States;     149. 

To  coin  Money,  regulate  the  Value  thereof,  and  of 
foreign  Coin,  and  iix  the  Standard  of  Weights  and 
Measures;     124,  150. 

To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the   United  States;     154. 

To  establish  Post  Offices  and  post  Roads;     150. 

To  promote  the  Progress  of  Science  and  useful  Arts, 
by  securing  for  limited  Times  to  Authors  and  Inventors 
the  exclusive  Eight  to  their  I'espective  Writings  and  Dis- 
coveries;    151. 

To  constitute  Tribunals  inferior  to  the  supreme  Court; 
153. 

To  define  and  punish  Piracies  and  Felonies  committed 
on  the  high  Seas,  and  Offences  against  the  Law  of  Na- 
tions;    153,  163,  200. 

To  declare  War,  grant  Letters  of  Marque  and  Eeprisal, 


CONSTITUTION   OF   THE    UNITED   STATES — 1787.  343 

and  make  Eules  concerning  Captures  on  Land  and  "Water; 
40  (note),  02  (note),  104,  100,  194,  200,  205. 

To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Terra  than  two 
Years;     134,  107. 

To  provide  and  maintain  a  Navy ;     107. 

To  make  Rules  for  the  Government  and  Regulation  of 
the  land  and  naval  Forces;     171. 

To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  In- 
vasions;    170. 

To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be 
employed  in  the  Service  of  the  United  States,  reserving 
to  the  States  respectively,  the  Appointment  of  the  OflR- 
cers,  and  the  Authority  of  training  the  Militia  according 
to  the  discipline  prescribed  by  Congress;     109,  170. 

To  exercise  exclusive  Legislation  in  all  Cases  whatso- 
ever, over  such  District  (not  exceeding  ten  Miles  square) 
as  may,  by  Cession  of  particular  States,  and  the  Accept- 
ance of  Congress,  become  the  Seat  of  the  Government  of 
the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of 
the  State  m  which  the  Same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock- Yards,  and  other  need- 
ful Buildings;— And     172,  174. 

To  make  all  Laws  which  shall  be  necessary  and  proper 
for  carrying  into  Execution  the  foregoing  Powers,  and 
all  other  Powers  vested  by  this  Constitution  in  the  Gov- 
ernment of  the  United  States,  or  in  any  Department  or 
Officer  thereof.     45,  54,  158. 

Section  9.  The  Migration  or  Importation  of  such  Per- 
sons as  any  of  the  States  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  by  the  Congress  prior 


344:  CONSTITUTION    OF   THE    UNITED    STATES  —  1787. 

to  the  Year  ond  thousand  eight  hundred  and  eight,  but  a 
Tax  or  duty  may  be  imposed  on  such  Importation,  not 
exceeding  ten  dollars  for  each  Person.     19. 

The  Privilege  of  the  writ  of  Habeas  Corpus  shall  not 
be  suspended,  unless  when  in  Cases  of  Rebellion  or  Inva- 
sion the  public  Safety  may  require  it.     19G. 

]^o  Bill  of  Attainder  or  ex  post  facto  Law  shall  be 
passed.     156,  223. 

1^0  Capitation,  or  other  direct,  tax  shall  be  laid,  unless 
in  proportion  to  the  Census  or  Enumeration  herein  before 
directed  to  be  taken.     118. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from 
any  State.     118. 

'No  Preference  shall  be  given  by  any  Regulation  of 
Commerce  or  Revenue  to  the  Ports  of  one  State,  over 
those  of  another:  nor  shall  Vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  ])ay  Duties  in 
another.     148. 

No  Money  shall  be  drawn  from  the  Treasur^^,  but  in 
Consequence  of  Appropriations  made  by  Law;  and  a 
regular  Statement  and  Account  of  the  Receipts  and  Ex- 
penditures of  all  public  Money  shall  be  published  from 
time  to  time.     133. 

No  Title  of  Nobility  shall  be  granted  by  the  United 
States:  And  no  Person  holding  any  Office  of  Profit  or 
Trust  under  them,  shall,  without  the  Consent  of  the  Con- 
gress, accept  of  any  present,  Emolument,  Office,  or  Title, 
of  any  kind  whatever,  from  any  King,  Prince,  or  foreign 
State.     106,  225. 

Section  10.  No  State  shall  enter  into  any  Treaty,  Al- 
liance, or  Confederation;  grant  Letters  of  Marque  and 
Reprisal;  coin  Money;  emit  Bills  of  Credit;  make  any 
Thing  but  gold  and  silver  Coin  a  Tender  in  Payment  of 
Debts;  pass  any  Bill  of  Attainder,  ex  post  facto  Law,  or 


00N8TITDTION    OF   THE   UNITED   STATES  — 1787.  345 

Law  impairing  the  Obligation  of  Contracts,  or  grant  any 
Title  of  IS^obility.     123,  164,  166,  £24,  225,  231. 

Ko  State  shall,  without  the  Consent  of  the  Congress, 
lay  any  Imposts  or  Duties  on  Imports  or  Exports,  except 
what  may  be  absolutely  necessary  for  executing  its  in- 
spection Laws;  and  the  net  Produce  of  all  Duties  and 
Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall 
be  for  the  Use  of  the  Treasury  of  the  United  States ;  and 
all  such  Laws  shall  be  subject  to  the  Revision  and  Con- 
troul  of  the  Congress.     120,  149  (note). 

No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time 
of  Peace,  enter  into  any  Agreement  or  Compact  with  any 
other  State,  or  with  a  foreign  Power,  or  engage  in  War, 
unless  actually  invaded,  or  in  such  imminent  Danger  as 
will  not  admit  of  delay.     120,  164,  165,  167. 

ARTICLE  II. 

Section  1.  The  executive  Power  shall  be  vested  in  a 
President  of  the  United  States  of  America.     82. 

He  shall  hold  his  Office  during  the  Term  of  four  years, 
and,  together  with  the  Yice  President,  chosen  for  the 
same  Term,  be  elected,  as  follows: 

Each  State  shall  appoint,  in  such  Manner  as  the  Legis- 
lature thereof  may  direct,  a  Is^umberof  Electors,  equal  to 
the  whole  IS^umber  of  Senators  and  Representatives  to 
which  the  State  may  be  entitled  in  the  Congress:  but 
no  Senator  or  Representative,  or  Person  holding  an  Office 
of  Trust  or  Profit  under  the  United  States,  shall  be  ap- 
pointed an  Elector.     85. 

The  Congress  may  determine  the  Time  of  chusing  the 
Electors,  and  the  Day  on  which  they  shall  give  their 
Votes ;  which  day  shall  be  the  same  throughout  the  United 
States.     85. 


346  COXSTITUTION    OF   THE    UNITED    STATES  —  1787. 

N'o  person  except  a  natural  born  Citizen,  or  a  Citizen 
of  the  United  States,  at  the  time  of  the  xVdoption  of  this 
Constitution,  shall  be  eligible  to  the  Office  of  President; 
neither  shall  any  Person  be  eligible  to  tliat  office  who 
shall  not  have  attained  to  the  Age  of  thirty  five  Years, 
and  been  fourteen  Years  a  Resident  within  the  United 
States.     Si,  84  (note). 

In  Case  of  the  Removal  of  the  President  from  Office, 
or  of  his  Death,  Eesignation  or  Inabilit}-  to  discharge  the 
Powers  and  Duties  of  the  said  Office,  the  Same  shall 
devolve  on  the  Yice  President,  and  the  Congress  may  by 
Law  provide  for  the  Case  of  Removal,  Death,  Resignation 
or  Inability,  both  of  the  President  and  Yice  President, 
declaring  what  Officer  shall  then  act  as  President,  and 
such  Officer  shall  act  accordingly,  until  the  Disability  be 
removed,  or  a  President  shall  be  elected.     83. 

The  President  shall,  at  stated  Times,  receive  for  his 
Services,  a  Compensation,  which  shall  neither  be  cncreased 
nor  diminished  during  the  period  for  Avhicli  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  Period 
any  other  Emolument  from  the  United  States,  or  any  of 
them.     106. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation : — "  I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully  execute  the  Office 
of  President  of  the  United  States,  and  will  to  the  best  of 
my  Ability,  preserve,  protect  and  defend  the  Constitution 
of  the  United  States."     45. 

Section  2.  The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and  of  the 
MiUtia  of  the  several  States,  when  called  into  the  actual 
Service  of  the  United  States;  he  may  require  the  Opin- 
ion, in  writing,  of  the  principal  Officer  in  each  of  the 
executive  Departments,  upon  any  Subject  relating  to  the 


CONSTITUTION   OF  THE    UNITED   STATES — 1787.  34:7 

Duties  of  their  respective  Offices,  and  he  shall  have  Power 
to  grant  Reprieves  and  Pardons  for  Offenses  against  the 
United  States,  except  in  Cases  of  Impeachment.  91, 162, 
192,  210,  211  (note  4). 

He  shall  have  Power,  by  and  with  the  Advice  and 
Consent  of  the  Senate,  to  make  Treaties,  provided  two 
thirds  of  the  Senators  present  concur ;  and  he  shall  nom- 
inate, and  by  and  with  the  Advice  and  Consent  of  the 
Senate,  shall  appoint  Ambassadors,  other  public  Ministers 
and  Consuls,  Judges  of  the  supremo  Court,  and  all  other 
Officers  of  the  United  States,  whose  Appointments  are 
not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  Law :  but  the  Congress  may  by  Law  vest 
the  Appointment  of  such  inferior  Officers,  as  they  think 
proper,  in  the  President  alone,  in  the  Courts  of  Law,  or 
in  the  Heads  of  Departments.     98,  199,  201,  207. 

The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by 
granting  Commissions  which  shall  expire  at  the  End  of 
their  next  Session.     209. 

Section  3.  He  shall  from  time  to  time  give  the  Con- 
iiress  Information  of  the  state  of  the  Union,  and  recom- 
mend to  their  Consideration  such  Measures  as  he  shall 
judge  necessary  and  expedient.     114. 

Ho  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and,  in  Case  of  Disagreement 
between  them,  with  Respect  to  the  Time  of  Adjourn- 
ment, he  may  adjourn  them  to  such  Time  as  he  shall 
think  proper;  he  shall  receive  Ambassadors  and  other 
public  Ministers;  he  shall  take  Care  that  the  Laws  be 
faithfully  executed,  and  shall  Commission  all  the  Officera 
of  the  United  States.     44,  81  (and  note  2),  199,  209. 

Section  4.  The  President,  Yice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from  Office 


34S  CONSTITUTION    OF   THE    UNITED    STATES 1TS7. 

on  Impeachment  for,  and  Conviction  of,  Treason,  Bribery, 
or  other  high  Crimes  and  Misdemeanors.     159. 

ARTICLE  III. 

Section  1.  The  judicial  Power  of  the  United  States, 
shall  be  vested  in  one  supreme  Court,  and  in  such  inferior 
Courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  Judges,  both  of  the  supreme  and  inferior 
Courts,  shall  hold  their  Offices  during  good  Behaviour, 
and  shall,  at  stated  Times,  receive  for  their  Services,  a 
Compensation,  which  shall  not  be  diminished  during  their 
Continuance  in  Office.     60,  96,  98  (note),  106. 

Section  2.  The  judicial  Power  shall  extend  to  all  Cases, 
in  Law  and  Equity,  arising  under  this  Constitution,  the 
Laws  of  the  United  States,  and  Treaties  made,  or  which 
shall  be  made,  under  their  Authority ; — to  all  Cases  affect- 
ing Ambassadors,  other  public  Ministers  and  Consuls ; — 
to  all  Cases  of  admiralty  and  maritime  Jurisdiction; — to 
Controversies  between  two  or  more  States; — to  Contro- 
versies to  which  the  United  States  shall  be  a  Party ;— be- 
tween a  State  and  Citizens  of  another  State; — between 
Citizens  of  different  States; — between  Citizens  of  the 
same  State  claiming  Lands  under  Grants  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof,  and 
foreign  States,  Citizens  or  subjects.     60,  151,  215. 

In  all  Cases  affecting  Ambassadors,  other  public  Minis- 
ters and  Consuls,  and  those  in  which  a  State  shall  be 
Party,  the  supreme  Court  shall  have  original  Jurisdiction. 
In  all  the  other  Cases  before  mentioned,  the  supreme  Court 
shall  have  appellate  Jurisdiction,  both  as  to  Law  and 
Fact,  with  such  Exceptions,  and  under  such  Regulations 
as  the  Congress  shall  make.     66  (note),  221,  222. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Juiy;  and  such  Trial  shall  be  held  in 


CONSTITUTION   OF   THE   UNITED   STATES 1T8T.  349 

the  State  where  the  said  Crimes  shall  have  been  commit- 
ted; but  when  not  committed  within  any  State,  the  Trial 
shall  be  at  such  Place  or  Places  as  the  Congress  may  by 
Law  have  directed.     223. 

Section  3.  Treason  against  the  United  States,  shall 
consist  only  in  levying  War  against  them,  or  in  adhering 
to  their  Enemies,  giving  them  Aid  and  Comfort.  No  Per- 
son shall  be  convicted  of  Treason  unless  on  the  Testimony 
of  two  "Witnesses  to  the  same  overt  Act,  or  on  Confession 
in  open  Court.     154. 

The  Congress  shall  have  Power  to  declare  the  Punish- 
ment of  Treason,  but  no  Attainder  of  Treason  shall  work 
Corruption  of  Blood,  or  Forfeiture  except  during  the 
Life  of  the  Person  attainted.     154. 

ARTICLE  IV, 

Section  1.  Full  Faith  and  Credit  shall  be  given  in 
each  State  to  the  public  Acts,  Eecords,  and  judicial  Pro- 
ceedings of  every  other  State.  And  the  Congress  may 
by  general  Laws  prescribe  the  Manner  in  which  such 
Acts,  Records  and  Proceedings  shall  be  proved,  and  the 
Effect  thereof.     243. 

.  Section  2.  The  Citizens  of  each  State  shall  be  entitled 
to  all  Privileges  and  Immunities  of  Citizens  in  the  sev- 
eral States.     247,  249. 

A  person  charged  in  any  State  with  Treason,  Felony, 
or  other  Crime,  who  shall  flee  from  Justice,  and  be  found 
in  another  State,  shall  on  Demand  of  the  executive  Au- 
thorit}'^  of  the  State  from  which  he  fled,  be  delivered  up 
to  be  removed  to  the  State  having  Jurisdiction  of  the 
Crime.     156,  245. 

No  Person  held  to  Service  or  Labour  in  one  State,  under 
the  Laws  thereof,  escaping  into  another,  shall,  in  Conse- 
quence of  any  Law  or  Regulation  therein,  be  discharged 


350  CONSTITL'TION   OF   THE    UNITED    STATES 1787. 

from  such  Service  or  Labour,  but  shall  be  delivered  up 
on  Claim  of  the  Part}"  to  whom  such  Service  or  Labour 
may  be  due.     246  (note  2). 

Section  3.  Kew  States  may  be  admitted  by  the  Con- 
gress into  this  L^nion;  but  no  new  State  shall  be  formed 
or  erected  within  the  Jurisdiction  of  any  other  State;  nor 
any  State  be  formed  by  the  Junction  of  two  or  more 
States,  or  Parts  of  States,  without  the  Consent  of  the 
Legislatures  of  the  States  concerned  as  well  as  of  the  Con- 
gress.    185. 

The  Congress  shall  have  Power  to  dispose  of  and  make 
all  needful  Rules  and  Regulations  respecting  the  Territory 
or  other  Property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to 
Prejudice  any  Claims  of  the  United  States,  or  of  any 
particular  State.     170. 

Section  4,  The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government, 
and  shall  protect  each  of  them  against  Invasion;  and  on 
Application  of  the  Legislature,  or  of  the  Executive  (when 
the  Legislature  cannot  be  convened)  against  domestic 
Violence.     105,  171,  230. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  Amendments  to 
this  Constitution,  or,  on  the  Application  of  the  Legisla- 
tures of  two  thirds  of  the  several  States,  shall  call  a 
Convention' for  proposing  Amendments,  which,  in  either 
case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of 
three  fourths  of  tlie  several  States,  or  by  Conventions  in 
three  fourths  thereof,  as  the  one  or  the  other  Mode  of 
Ratification  may  be  proposed  by  the  Congress;  Provided 


CONSTITUTION   OF   THE    UNITED   STATES  —  1787.  351 

that  no  Amendment  which  may  be  made  prior  to  the 
Year  One  thousand  eight  hundred  and  eight  shall  in  any 
Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 
Section  of  the  first  Article;  and  that  no  State,  without 
its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the 
Senate.     52.  52  (note),  262. 

ARTICLE  VI. 

All  Debts  contracted  and  Engagements  entered  into, 
before  the  Adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution, 
as  under  the  Confederation.     122. 

This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof;  and  all  Treat- 
ies made,  or  which  shall  be  made,  under  the  Authority 
of  the  United  States,  shall  be  the  supreme  Law  of  the 
Land;  and  the  Judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  Constitution  or  Laws  of  any 
State  to  the  Contrary  notwithstanding.     43,  205. 

The  Senators  and  Representatives  before  mentioned, 
and  the  Members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  Officers,  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  Oath 
or  Affirmation,  to  support  this  Constitution;  but  no  relig- 
ious Test  shall  ever  be  required  as  a  Qualification  to  any 
OflBce  or  public  Trust  under  the  United  States.     225. 

ARTICLE  VII. 

The  ratification  of  the  Conventions  of  nine  States,  shall 
be  sufficient  for  the  Establishment  of  this  Constitution 
between  the  States  so  ratifying  the  Same.     23. 

Done  in  Convention  by  the  Unanimous  Consent  of  the 
States  present  the  Seventeenth  Day  of  September  in  the 
Year  of  our  Lord  one  thousand  seven    hundred    and 


352  COXSTITUTIOX    OF   THE    UNITED    STATES 1787. 

Eighty  seven,  and  of  the  Independence  of  the  United 
States  of  America  the  Twelfth.  In  Witness  whereof 
We  have  hereunto  subscribed  our  Thames. 

Go:  Washington  — 
Presidt.  and  Deputy  from  Virginia. 

new  hampshire, 
John  Langdon,  Nicholas  Gilman. 

massachusetts. 
Xathaniel  Goeham,  Rufus  King. 

connecticut. 
Wm.  Sam'l.  Johnson,  Roger  Shermait. 

NEW    YORK. 

Alexander  Hamilton. 
NEW  jersey. 
Wil:  Livingston,  Wm.  Paterson, 

David  Brearley,  Jona.  Dayton, 

pennsylvania. 

B.  Franklin,  Thos.  Fitzsimons, 

Thomas  Mifflin,  Jared  Ingersoll, 

RoBT.  Morris,  James  Wilson, 

Geo.  Clymer,  Gouv.  Morris. 

delaware. 

(iEo.  Read,  Richard  Bassett, 

(tunning  Bedford,  Jun.,  Jaco:  Broom, 

John  Dickinson. 

maryland. 
James  McHenry,  Dan.  Carroll, 

Dan.  Jenifer,  of  St.  Thomas. 

VIRGINIA. 

John  Blaik,  James  Madison,  Jr. 


CONSTITUTION   OF   THE   UNITED   STATES  —  1787.  353 

NOETH   OAEOLINA. 

Wm.  Blount,  Hugh  WiLUAMSOir, 

Rich'd  Dobbs  Speight. 

south  oakolina. 
J.  RuTLEDGB,  Charles  Pincknet, 

Chaeles  Cotesworth  Pinokney,   Pierce  Butleb. 

GEORGIA. 

WiLLLA3£  Few,  Abr.  Baldwin. 

Attest:  William  Jackson,  Secreta/ry. 


354  CONSTITUTION    OF    THE    UNITED    STATES 1787. 

ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT 
OF.  THE  CONSTITUTION  OF  THE  UNITED 
STATES  OF  AMEPwICA,  PROPOSED  BY  CON- 
GRESS, AND  RATIFIED  BY  THE  LEGISLAT- 
URES OF  THE  SEVERAL  STATES  PURSUANT 
TO  THE  FIFTH  ARTICLE  OF  THE  ORIGINAL 
CONSTITUTION.     28. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech,  or  of  the  press;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances.  29, 
50  (note),  226,  228,  229. 

ARTICLE  n. 

A  well  regulated  Militia,  being  necessary  to  the  secu- 
rity of  a  free  State,  the  right  of  the  people  to  keep  and 
bear  Arms,  shall  not  be  infringed.     29,  50  (note),  230. 

ARTICLE  IIL 

No  Soldier  shall,  in  time  of  peace,  be  quartered  in  any 

house,  without  the  consent  of  the  Owner,  nor  in  time  of 

war,  but  in  a  manner  to  be  prescribed  by  law.     29,  .')0 

(note),  171. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
iiouses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated,  and  no  Warrants  shall 
issue,  but  upon  probable  cause,  supported  by  Oath  or 
atiirraation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized.  29,  50 
(note),  251,  257. 


CONSTITUTION   OF   THE    UNITED   STATES  —  1787.  355 

'ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  Grand  Jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger;  nor  shall  any 
person  be  subject  for  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb;  nor  shall  be  compelled  in  any 
Criminal  Case  to  be  a  witness  against  himself,  nor  be  de- 
prived of  life,  liberty,  or  property,  without  due  process  of 
law;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation.  29,  50  (note),  251,  258,  261 
(note). 

ARTICLE  VT. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have 
been  committed,  which  district  shall  have  been  previously 
ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor,  and  to  have  the  Assistance 
of  Counsel  for  his  defense.     29,  50  (note),  251,  258. 

ARTICLE  VII. 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  Jury 
shall  be  preserved,  and  no  fact  tried  by  a  jury  shall  be 
otherwise  re-examined  in  an}'^  Court  of  the  United  States, 
than  according  to  the  rules  of  the  common  law.  29,  50 
(note),  222,  251,  261. 


35G  CONSTITUTION    OF    THE    UNITED    STATES 178T. 

ARTICLE  YIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted.    29, 

50  (note),  251,  258,  261. 

ARTICLE  IX. 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people.     29. 

ARTICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
serv^ed  to  the  States  respectively,  or  to  the  people.     29, 

51  (and  note),  53,  Si,  55. 

ARTICLE  XL 

The  Judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  Citizens  of  another  State,  or  by  Citizens  or  Subjects 
of  any  Foreign  State.     30,  220. 

ARTICLE  XIL 

The  Electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and 


CONSTITUTION    OF   THE    UNITED   8TATK8 — 1787.  357 

certify,  and  transmit  sealed  to  the  seat  of  the  Government 
of  the  United  States,  directed  to  the  President  of  the 
Senate;  —  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives, 
open  all  the  certificates  and  the  votes  shall  then  be 
counted;  —  The  person  having  the  greatest  number  of 
votes  for  President,  shjill  be  the  President,  if  such  num- 
ber be  a  majority  of  the  whole  number  of  Electors  ap- 
pointed ;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  states,  the  representation  from 
each  state  having  one  vote;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of 
the  states,  and  a  majority  of  all  the  states  shall  be  neces- 
sary to  a  choice.  And  if  the  House  of  Representatives, 
shall  not  choose  a  President  whenever  the  right  of  choice 
shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Yice-President  shall  act  as  Presi- 
dent, as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President.  The  person  having  the  great- 
est number  of  votes  as  Vice-President,  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole 
number  of  Electors  appointed,  and  if  no  person  have  a 
majority,  then  from  the  two  highest  numbers  on  the  list, 
the  Senate  shall  choose  the  Vice-President;  a  quorum  for 
the  purpose  shall  consist  of  two-thirds  of  the  whole  num- 
ber of  Senators,  and  a  majority  of  the  whole  number  shall 
be  necessary  to  a  choice.  But  no  person  constitutionally 
ineligible  to  the  office  of  President  shall  be  eligible  to  that 
of  Vice-President  of  the  United  States.    30,  84,  89. 


358       coNsxrruTioN  of  the  united  states  — 1787. 

ARTICLE  XIII. 

Section'  1.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction.  30,  31 
(note),  230. 

Section  2.  Congress  sliall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

ARTICLE  XIV. 

Section  1,  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  iuiiuunities  of  citi- 
zens of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the  laws.     30,  250,  251. 

Section  2.  Rej)resentatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  ex- 
cluding Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  President 
and  Vice  President  of  the  United  States,  Representatives 
in  Congress,  the  Executive  and  Judicial  officers  of  a  State, 
or  the  members  of  the  Legislature  thereof,  is  denied  to 
an}'  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States,  or  in 
any  way  abridged,  except  for  participation  in  rebellion,  or 
other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male 
citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State.     30,  73. 


CONSTITUTION   OF   THE   UNITED   8VATE8 — 1787.  359 

Section  3.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and  Vice 
President,  or  hold  any  office,  civil  or  military,  under  the 
United  States,  or  under  any  State,  who,  having  previously 
taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer 
of  the  United  States,  or  as  a  member  of  any  State  Leg- 
islature, or  as  an  executive  or  judicial  officer  of  any 
State,  to  support  the  Constitution  of  the  United  States, 
shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may  by  a  vote  of  two-thirds  of  each  House, 
remove  such  disability.     30,  80,  100  (note  2). 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for 
payment  of  pensions  and  bounties  for  services  in  suppress- 
ing insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume  or 
pay  any  debt  or  obligation  incurred  in  aid  of  insurrec- 
tion or  rebellion  against  the  United  States,  or  my  claim 
for  the  loss  or  emancipation  of  any  slave;  but  all  such 
debts,  obligations  and  claims  shall  be  held  illegal  and 
void.     30,  122  (note  1). 

Section  5.  The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

ARTICLE  XV. 

Section  1.  The  right  of  citizens  of  the  United  States 
to  vote  shall  not  be  denied  or  abridged  by  the  United 
States  or  by  any  State  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude.     30,  75. 

Section  2.  The  Congress  shall  have  power  to  enforce 
(,his  article  by  appropriate  legislation. 


INDEX. 


Adams,  John,  sedition  law  passed  during  his  presidency,  229. 
Adams,  J.  Q.,  on  adoption  of  constitution,  20;  elected  president  by 

house,  86,  note  1. 
Admission  of  new  states,  83,  76,  note  2,  185. 
Albany  congress  of  1754,  4. 
Alien  and  sedition  laws,  40,  note  2,  229. 
Aliens,  non-naturalized,  may  have  franchise,  72. 
Amendment  of  the  constitution,  15,  28,  81  (note),  52,  262. 
Amendment  of  state  constitutions,  292. 
Amendments,  ratification  of  thirteenth,  fourteenth  and  fifteenth,  81. 

note. 
Annapolis  convention  of  1786,  15. 
Appropriations,  131,  and  note. 
Appropriations,  statistics  of,  135. 
Articles  of  confederation,  3,  8. 
Arthur,  Chester  A.,  becomes  president,  83;  negotiates  commercial 

treaties,  204,  note. 
Arrests,  257. 
Assembly,  right  of,  230. 
Attainder,  bills  oJ,  223. 
Attempts  at  federation,  i. 
Bank  of  the  United  States,  126,  note  3. 
Bearing  arms,  right  of,  230. 
Benevolent  institutions  (state),  284. 
Bible  in  public  schools,  309. 
Bill  of  rights,  29,  50,  267. 
Bills  of  attainder,  223. 
Brevet  rank,  197. 
Cabinet,  has  no  executive  power,  83;  no  constitutional  existence,  90: 

no  legal  or  political  responsibility,  90 
Cabinet  in  the  states,  288. 
Calhoun,  John  C,  on  nullification,  40. 
Capitation  taxes  (state),  299. 


362  INDEX. 

Charters,  233. 

Checks  and  balances,  system  of,  60. 

Church  and  state,  225,  314. 

Citizens  of  the  separate  states,  248. 

City  government,  329. 

Ci\'il  rights,  257. 

Civil  service  reform,  106,  note,  208,  note,  256,  275.  290. 

Cleveland,  Grover,  opposes  coinage  of  silver,  124,  note. 

Clinton,  George,  opposes  ratification  of  the  constitution,  25. 

Coins  and  coinage,  124,  note. 

Colleges  and  universities,  313. 

Common  law  in  America,  161. 

Commerce,  136. 

Comity  between  states,  242. 

Committees  of  congress,  109. 

Committees  of  the  whole,  111,  note  1. 

Compulsory  education,  306. 

Concurrent  jurisdiction  of  state  and  federal  court?!,  213. 

Concurrent  powers  in  general,  56 ;  as  to  taxation,  120 ;  as  to  trade  and 
commerce,  142,  147. 

Condemnation,  253,  261,  note  1. 

Confederation,  articles  of,  3,  8. 

Conflicts  of  authority,  in  general,  58. 

Congress  (Albany)  of  1754,  4;  (New  York)  of  1705,  5;  (Philadelphia) 
of  1774,  5;  (do.)  of  1775,  6. 

Congress,  election  of  its  members,  71 ;  its  sessions,  81 ;  organization, 
81;  powers  over  its  own  members,  103;  judicial  functions,  103; 
privileges  and  immunities  of  members,  101;  their  salaries,  105; 
procedure,  108;  committees,  109,  note;  general  powers,  116;  finan- 
cial tasks,  130;  regulates  immigration,  148;  naturalization,  149; 
postoffices,  150;  its  power  to  build  post-roads,  150,  note  3;  regu- 
lates weights  and  measures,  150 ;  patents  and  copyrights,  151 ;  its 
criminal  jurisdiction,  153;  treason,  154;  impeachment,  158;  pow- 
ers as  to  foreign  relations,  163,  199,  note  1 ;  war  pov>-(;rs,  164,  194; 
militia,  171 ;  District  of  Columbia,  172 ;  national  property,  174 ; 
territories,  175;  admission  of  new  states,  185;  controls  suspen- 
sion of /tatea.s  cor/)MS,  196;  decides  whether  state  government  is 
republican  in  form,  238. 

Congressional  elections,  71. 

Conscription,  167. 

Constitution,  ratification  of,  24 ;  amendment  of,  52,  263 ;  rules  for  its 
inteqjretation  and  construction,  55,  116. 


INDEX.  863 

Constitutions  (state),  in  general,  206 ;  their  constituent  parts,  267. 

Constitutional  conventions  (state),  264. 

Contracts,  231. 

Controversies  between  states,  219. 

Conventions,  constitutional  (state),  264. 

Conventions,  national,  87. 

Conventions  of  1780  (Hartford),  13;  of  1786  (Annapolis),  15;  of  1787 
(Philadelphia),  16,  43. 

Copyrights,  152. 

Copyrights,  international,  153. 

Criminal  law,  congressional  powers  concerning,  154. 

Criminal  procedure,  258. 

Corporations,  municipal,  324. 

Court-martials,  197,  note  3. 

Courts,  federal,  jurisdiction  of,  211 ;  practice  and  pleading  in,  221. 

Courts,  state,  291. 

Courts,  territorial,  98,  note. 

Counties,  325. 

County  officers,  326. 

Dartmouth  College  case,  235. 

Debt,  public,  117;  statistics  of,  128,  note  3. 

Debts  of  states,  279. 

Declaration  of  Independence,  7. 

Demonetization  of  silver,  124,  note. 

Dei^artment  of  justice,  organization  and  work  of,  05,  note. 

Departments,  the  executive,  95,  and  note. 

Direct  taxes,  73,  note  2. 

District  of  Columbia,  172. 

Division  of  powers,  67. 

Divorce,  national  law  of,  suggested,  243. 

Due  process  of  law,  252. 

Duties  on  exports,  118,  and  note. 

Duties  on  imports,  statistics  of ,  121,  note  2. 

Education,  compulsory,  306. 

Election  of  president  and  vice-president,  85. 

Election,  presidential,  of  1876,  88. 

Elections,  congi-essional,  71,  77. 

Elective  judiciary  (state),  293. 

Electoral  college,  87. 

Electoral  commission  of  1876,  88. 

Electoral  votes  disputed,  Missouri  in  1821 ;  Michigan  in  1827 ;  Wis- 
consin in  1857;  Louisiana  in  1873;  Florida,  South  Carolina  and 
Louisiana  in  1877,  81. 


3(>-l  INDEX. 

Electoi's.  presidential,  how  chosen,  85. 

Emancipation  proclamation.  115,  note  2:  195,  note  1. 

Eminent  domain,  253,  261,  note  1. 

Enabling  acts,  187. 

Executive  depai'tments,  95,  and  note. 

Executive  power,  belongs  wholly  to  president,  82. 

Executive  power  in  the  states,  285. 

Export  duties,  118  and  note. 

Extradition,  in  general,  245 ;  cannot  be  compelled,  246. 

Ex  2wst  facto  laws,  223. 

Factory  laws,  283. 

Federal  and  state  authority,  limits  of,  56. 

Federal  courts,  jurisdiction  of,  211 ;  practice  and  pleading  in,  221. 

Federal  government,  powers  of,  53 ;  organization  of,  66. 

Federal  judges,  salaries  of,  106. 

Federation,  early  attempts  at,  4. 

FiUmore,  Millard,  83. 

Finance,  117. 

Forestry,  282. 

Foreign  relations,  163,  198. 

Franchise  may  bo  given  non-naturalized  aliens,  72. 

Freedom  of  conscience,  223. 

Freedom  of  the  press,  228. 

Freedom  of  speech,  228. 

Governor  of  a  state,  his  functions,  286. 

Granger  cases,  235. 

Grant,  U.  S.,  seeks  third  term  nomination,  69,  note;  recommends 
purchase  of  telegraph  lines  by  government,  145,  note  2 ;  proposes 
constitutional  amendment  providing  for  non-sectarian  jjublic 
schools,  310,  note  2. 

Habeas  corpus,  suspension  of,  196. 

Hamilton,  Alexander,  writes  the  Federalist,  24;  recommends  a  na- 
tional bank,  126,  note  2. 

Hartford  convention  of  1780,  13. 

Hayes,  R.  B.,  how  lie  became  president,  90;  vetoes  law  remonetizing 
silver,  124,  note. 

Henry,  Patrick,  opposes  unconditional  ratification  of  the  constitu- 
tion, 24. 

Historical  method,  2. 

Homestead  exemption,  298,  note  2. 

Houston,  Samuel,  103,  note  2. 

Illinois,  minority  representation  in,  269,  note. 

Immigration,  148. 


INDEX.  865 

Impeachment,  158. 

Implied  powers,  54,  116, 

Implied  restrictions  on  state  action,  271. 

Import  duties,  statistics  of,  121,  note  3. 

Imports,  statistics  of,  121,  note  2. 

Income  taxes  (state),  301. 

Independence,  declaration  of,  7. 

Indians,  136,  notes  2,  3 ;  248,  note  4. 

Individual  rights,  251. 

Instruction,  right  of,  78. 

Internal  improvements,  150,  note  3;  276,  280. 

Interior  department,  organization  and  work  of,  95,  note. 

International  copyright,  153. 

Interpretation  of  constitution,  rules  for,  55,  116. 

Jackson,  Andrew,  his  farewell  address,  115,  note  1;  his  views  on  in- 
ternal improvements,  150,  note  3 ;  demoralizes  the  civil  service, 
208. 

Jeflferson,  Thomas,  opposes  the  two-chamber  system,  80. 

Johnson,  Andrew,  becomes  president,  83 ;  his  conflict  with  congrefls, 
93,  note. 

Johnston,  R.  N.,  elected  vice-president  by  senate,  86,  note  2. 

Judges,  federal,  hold  office  during  good  behavior,  98 ;  their  salaries, 
106. 

Judicial  powers  of  United  States,  60. 

Jurisdiction,  concurrent,  of  state  and  federal  courts,  213, 

Jury,  in  criminal  cases,  259;  in  civil  cases,  261. 

Kentucky  and  Virginia  resolutions,  40,  note  2. 

Laisser  faire  theory,  280. 

Land  grants,  178,  276,  note,  305. 

Landt--,  national,  survey  and  sale  of,  179,  note. 

Law,  due  process  of,  252. 

League  (New  England)  of  1643,  4. 

Lee,  Robert  E.,  opposes  secession,  157. 

Legal  tender  cases,  62,  note. 

Legal  tenders,  122,  125,  note  3. 

Legislative  methods  (state),  272. 

Legislatures  (state),  in  general,  268 ;  cannot  instruct  senators,  80. 

License  and  business  taxes  (state),  302. 

Lincoln,  Abraham,  his  emancipation  proclamation,  115,  note  2;  195, 
note  1, 

Madison,  James,  aids  in  writing  the  Federalist  and  carries  ratifica- 
tion in  Virginia,  25 ;   his  views  on  conditional  ratification,  36 ; 


3G6  INDEX. 

favors  use  of  general  expressions  in  constitution,  53;  cluunpions 
state  rights,  61,  note:  declares  legal  tender  notes  unconstitu- 
tional, 125,  note  3. 

Military  acadeiuy,  West  Point,  168,  note. 

Military  affairs,  164,  192. 

Militia,  169,  230,  287,  note  2. 

Minority  representation  (in  Illinois),  269,  note. 

Monroe,  James,  on  internal  improvements,  150,  note  3. 

Mormonism,  226,  note  2. 

Morris,  Gouvewieur,  favors  ratification  of  constitution,  27. 

Municipal  corporations,  324. 

National  debt,  statistics  of,  126,  note  2. 

Naturalization,  149. 

National  banks,  122. 

National  sovereignty,  50. 

National  lands,  survey  and  sale  of,  179,  note. 

National  conventions.  87. 

Navigation  la\vs>,  231. 

Naval  academy,  Annapolis,  168,  note. 

Navy  department,  organization  and  work  of,  95,  noto. 

New  England  league  of  1643.  4. 

New  states,  admission  of,  33,  76.  note  2. 

New  York  and  Virginia  delay  ratifying  constitution,  24. 

New  York  congress  of  1765,  5. 

Nobility,  titles  of,  225,  note  4. 

Nomination  of  candidates  for  president,  87. 

Non-coercion  theory,  41. 

Non-interference  theory,  280. 

Normal  schools,  310. 

Office,  tenure  of,  61. 

Organization  of  federal  government.  66. 

Paper  money  in  the  United  States,  history  of,  126,  note  2. 

Parliamentary  government,  92,  191,  note. 

Parliamentary  government  in  the  states,  289. 

Pardons,  210. 

Patents,  151. 

People  vs.  population,  47. 

Petition,  right  of,  230. 

Philadelphia  congress  of  1774,  5. 

Philadelphia  congress  of  1775,  6. 

Philadelphia  convention  of  1787,  16,  43. 

Police  powers  of  the  states,  142. 


INDEX.  367 

Polk,  J.  K.,  consults  senate  before  making  treaty,  201,  note. 

Population  and  area,  statistics  of,  34. 

Population  vs.  people,  47. 

Powers  of  federal  government,  53. 

Postoffice  department,  organization  and  work  of,  95,  note. 

Practice  and  pleading  in  federal  courts.  221. 

Preamble  to  the  constitution,  37. 

President,  has  all  the  executive  power,  82;  election  of,  85;  his  salary, 
106;  his  inaugural  address,  115;  his  general  powers,  190;  military 
powers,  192;  war-powers,  194;  cannot  suspend  habeas  corpus, 
196 ;  powers  as  to  foreign  relations,  199 ;  treaty -power,  200 ;  ap- 
pointment of  officials,  206;  pardoning  power,  210. 

Presidential  election  of  1876,  86. 
"         electors,  85. 
"         messages,  114. 
"  proclamations,  115. 

Private  property,  taking  for  public  use,  253;  dedication  to  public 
uses,  254. 

Public  debt,  117. 

Public  use  of  private  property,  254. 

Public  works  (state),  284. 

Railroads,  145,  note  2,  255. 

Ratification  of  constitution,  24. 

Re-admission  of  states,  31,  note,  47,  188,  note. 

Real  estate  owned  by  United  States,  174. 

Reconstruction,  47,  240. 

Reform,  civil  service,  106,  note,  208,  256,  275,  290. 

Regulation  of  commerce,  136. 

Religious  liberty,  225. 

Removal  of  causes,  216,  note  2. 

Republican  form  of  government,  guarantee  of,  236. 

Resulting  powers,  116. 

Revenue,  federal,  statistics  of,  121,  note  2,  135. 

Searches,  257. 

Schools,  normal,  310. 

Schools,  public,  804. 

Schurz,  Carl,  his  Indian  policy,  136,  note  3. 

Secession,  duty  of  preventing  it  by  force,  45. 
*•         ordinances  of,  null  and  void,  46. 
"  theory  of,  41. 

Seizures,  257. 

Senators,  election  of,  77 ;  legislatures  cannot  instruct  them,  78. 


368  INDEX. 

Seward,  W.  H.,  his  views  on  initiative  of  the  house  in  making  aj)- 
propriations,  132;  denies  congressional  jurisdiction  of  foreign 
affairs,  199 ;  as  governor  of  New  York  refuses  request  for  extra- 
dition, 245. 

Silver  demonetized,  124,  note. 

Slavery,  18,  19,  175,  230. 

Social-political  legislation,  283. 

Sovereignty  of  United  States,  50. 

Special  legislation  (state),  275. 

State  department,  organization  and  work  of,  95,  note. 

State  courts,  291. 
"     debts,  279. 
"    sovereignty,  39,  157. 

States,  the,  readmission  of,  31,  note,  47,  188,  note;  their  police 
po%vers,  142;  admisssion  to  the  Union,  185;  controversies  be- 
tween them,  219;  cannot  be  sued,  220;  their  citizenship,  248; 
constituent  parts  of  their  constitutions,  267 ;  their  legislative  pow- 
ers, 268 ;  implied  restrictions  upon  them,  271 ;  their  legislative 
methods,  272 ;  special  legislation,  275 ;  social-political  legislation, 
283 ;  impeachment,  285 ;  the  executive  power,  285 ;  the  governor, 
286;  the  cabinet,  288;  parliamentary  government,  289;  courts, 
291 ;  amendment  of  constitutions,  292 ;  taxes  in  general,  296 ; 
capitation  tax,  299 ;  income  tax,  301 :  license  and  business  taxes, 
302. 

Statistics  of  population  and  area,  34;  of  imports,  121,  note  2;  of  fed- 
eral revenue,  121,  note  2,  135;  of  the  national  debt,  126,  note  2; 
of  appropriations,  135;  of  land-grants,  276,  note. 

Stephens,  A.  H.,  opposes  secession,  157. 

Supreme  court,  packed  to  reverse  legal  tender  cases,  62,  note ;  its  de- 
cisions on  constitutional  questions,  63 ;  limits  of  its  jurisdiction, 
66,  note ;  its  stability,  69 ;  cannot  compel  extradition,  246. 

System  of  checks  and  balances,  60. 

Taxation,  117. 

"         direct,  73,  note  2. 

"        (state),  296,  299,  301,  302. 

Territories,  175. 

Territorial  courts,  98,  note. 

"         government,  184,  note. 

Test-oath  cases,  224,  note. 

Texas,  190. 

Telegraphs,  145,  note  3. 

Tenure  of  office,  69. 


INDEX.  369 

Tenure  of  office  act,  93,  note. 

Titles  of  nobility,  225,  note  4. 

Tilden,  S.  J.,  his  claims  to  the  presidency,  90. 

Town  officers,  328. 

Townships,  327. 

Trade,  regulation  of,  136. 

Trade-marks,  158. 

Treason,  154. 

Treasury  department,  organization  and  work  of,  95,  note. 

Treaty-power,  200. 

Tyler,  John,  83. 

Universities  and  colleges,  313. 

Vacancies  in  presidential  office,  83,  note. 

Veto,  113. 

Vice-president,  his  functions,  83 ;  election  of,  85. 

Virginia  and  Kentucky  resolutions,  40,  note  3. 

Virginia  and  New  York  delay  ratifying  constitution,  34. 

War  department,  organization  and  work  of,  95,  note. 

War  powers,  194. 

Warrants,  358. 

Washington,  George,  on  convention  of  1787,  16;  on  ratification  of  the 

constitution,  37:  his  farewell  address,  115,  note  1;  consults  senate 

before  making  treaty,  301,  note  1. 
Webster,  Daniel,  on  the  territories,  183 ;  on  commercial  treaties,  204. 
Weights  and  measures,  150. 
West  Point  military  academy,  168,  note. 
34 


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Date  Due 

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Library  Bureau  Cat.  No.  1137 

lir.  SOUTHERN  REGIONAL  UBnABV  f  AOUTy 


A  001  009  662  6 


JK31 


H6e5 


Hoist,  Hermann  Eduard  von. 

The  constitutional  law  of  the 
United  States  of  America, 


